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The Constitution Outside The Constitution, Ernest A. Young

Ernest A Young

In countries that lack a single canonical text, the “constitution” is defined to include all those laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, is generally thought to include a variety of constitutive statutes, such as Magna Carta, the Parliament Acts, and the Human Rights Act. This article proposes a thought experiment: What if we defined the U.S. constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices …