The Shadow Constitution: Rescuing our Inheritance from Neglect and Disuse

Stephen Menendian* | 26.2 | Citation: Stephen Menendian, The Shadow Constitution: Rescuing our Inheritance from Neglect and Disuse, 26 U. Pa. J. Const. L. 339 (2024).

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The United States Constitution is the foundation of American law and one of the most venerated documents in the American political community.  Although most constitutional scholarship focuses on the meaning of the more heavily litigated provisions, such as the equal protection clause and the due process clause, prior scholarship has also identified and pressed for the revival or re-interpretation of many neglected or largely overlooked provisions of the United States Constitution.  Much of this prior scholarship, however, is narrowly focused on a  particular provision or small set of interrelated provisions.  This article surveys twelve constitutional provisions characterized in prior scholarship as “lost” or “forgotten,” and summarizes the arguments advanced in prior scholarship for their revival or resurrection.

When viewed collectively rather than in isolation, these twelve provisions are more than the sum of their parts.  This Article argues that, taken together, these overlooked or neglected provisions constitute a ‘shadow’ constitution within the prevailing one.  This article deconstructs the organizational structure and key component elements of the U.S. Constitution and demonstrates how the dormant or neglected provisions interlock and complement to form a coherent but operationally absent constitutional structure.  This absence, through disuse and neglect, has not only vitiated our constitutional inheritance, but would, if fully reincorporated into the prevailing constitution and accompanying body of constitutional enforcement and interpretation, afford far greater protection and security to marginalized groups while holding more powerful elements of society to account.

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* Stephen Menendian is the Assistant Director and Director of Research at the Othering and Belonging Institute at UC Berkeley.