chapter 11
...................................................................................................................................................ANALYZING
CONSTITUTIONS
...................................................................................................................................................peter m. shane
Constitutions, written or unwritten, are sets of rules, practices, and customs that
polities regard as their fundamental law (DeSmith and Brazier 1989 , 3 – 4 ). In modern
form, they typically aspire to constrain government power, assure adherence to the
rule of law, and protect individual rights (Rosenfeld 1994 , 3 ). As such, theyWt
Douglass North’s conception of an institution as a socially imposed constraint or
set of constraints upon human behavior (North 1990 , 3 ). Of course, in their variety
and signiWcance, they pose questions of obvious interest to political scientists,
sociologists, and legal scholars. Some of these questions are comparative in nature:
Why do diVerent constitutions take the diVerent forms they do? What political or
other diVerences do distinctions in constitutional form and substance actually make
(e.g. Sartori 1994 )? Other questions can be sensibly asked with regard to constitutions
in general or particular constitutions as they operate in particular societies: What are
the social and political functions of a constitution? Through what social and political
processes are the provisions of a constitution actually translated into meaningful
constraints or authorities? This chapter oVers a perspective on constitutional
analysis that examines these latter questions, largely through an American lens.
Because constitutions, written or unwritten, can be given operational meaning
only through the workings of other political institutions, any analysis of how
constitutions shape and facilitate human interaction must necessarily be complex.
In the United States, it is impossible to speak sensibly of ‘‘what the Constitution