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America’s Statutory “constitution,” 41 U.C. Davis L. Rev. 1 (2007)


Aristotle's Politics is the first systematic account of constitutionalism. "A constitution is the organization of offices in a state, and determines what is to be the governing body," as well as the interconnection among the various offices and that governing body. The constitution also announces "what is the end of each community. But laws are not to be confounded with principles of the constitution; they are the rules according to which the magistrates should administer the state, and proceed against offenders." By Aristotle's influential account, a nation's constitution is its rules and practices for ordering the institutions of government, determining who participates in political life, and establishing fundamental principles that should guide the government. The constitution should be contrasted from ordinary laws, which establish ordinary positive rules of conduct for those subject to the state's power. Under such an understanding, America's (small "c") constitution is not exhausted by the rules and principles found in the U.S. (Large "C") Constitution.

Today, in fact, special "super-statutes" - framing statutes that set forth robust rules for government structure, electoral activities, and public values - articulate a great many of the applicable rules and principles of our Constitution as well as our constitution. Put it another way: If all you read was the Large "C" Constitution, you would not know where most legal rules come from, how democratic our polity is, and what principles represent our highest aspirations; nor would you have any idea about the details of institutional arrangements and public values. You can only know those things by studying America's super-statutes and their implementing regulations.

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