Peter M. Shane

Voting Rights and the “Statutory Constitution”

One way of understanding the capacity of nonjudicial actors to create the operational meaning of our Constitution is to relate the topic to a larger problem perennially plaguing U.S. constitutional theorists, namely, accounting for legal change. Under our conventional professional narrative, the fundamental law of the United States resides in a 1787 document, formally amended twenty-seven times. Yet, no easy reading of that document, including its amendments, could hope to explain why contemporary understanding of our fundamental law differs so drastically from the constitutional law of 1789. The traditional response to this conundrum-identifying courts as the agents of constitutional transformation-depicts radical alterations in U.S. constitutional law as the fruit of two centuries of interpretive activity by the judiciary. Yet this move only plunges us into two further sets of theoretical difficulties.