White Fire: Structural Indeterminacy, Constitutional Design, and the Constitution Behind the Text
Bibliographic record
Abstract
This article argues for the importance of attending to the unwritten elements of constitutionalism for both constitutional theory and constitutional design. In particular, the concern is with the structural elements of constitutions - the way in which power is distributed and institutions are structured in constitutions - not on the interpretation or substance of constitutional rights. The article looks carefully at the two North American constitutional orders that emerged out of or in reaction to the unwritten tradition of the UK, analyzing contemporary jurisprudential debates in Canada and excavating a somewhat more buried but no less robust tradition of thinking about the unwritten constitution in the US. Close examination of the practices and theory of constitutionalism in both countries suggests that it is the unwritten constitutional conventions, norms, and ethos that ultimately prove essential to sustaining a stable democracy governed by the rule of law. Furthermore, looking at moments of constitutional tension in both countries - debates about Quebec's place in Canada and times of war and terror, both historical and modern, in the US - indicates that these unwritten elements of the constitutional order become particularly important at times of extremity, constitutional stress, and national crisis. The article closes with reflections on how taking unwritten constitutionalism seriously might inflect contemporary constitutional theory and what it might mean for projects of constitutional design.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.018 | 0.024 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.000 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.009 | 0.075 |
| Scholarly communication | 0.013 | 0.010 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.003 | 0.006 |
| Insufficient payload (model declined to judge) | 0.005 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".