Institutions are interlocking stages of action. There is no will of Congress or even of the executive branch; there are instead what you might think of as institutional perches upon which individual human being sit, and from which they may take action.
Language allows us to have words like “Congress” which we treat like really existing entities in order to regulate the power relations between individuals, by giving them roles within that entity, which then changes their relations to individuals outside of the entity. Members of Congress have powers available to them that ordinary citizens, who are not members of that institution, do not. The entity (“Congress”) is the stage in which members of Congress can take specific actions, exercising their powers in their institutional role which they cannot do, even though they are the same physical people, when they’re off the clock (or Congress is out of session).
To exercise social power is to be an individual in an institutional context who performs an action that achieves an effect which results from that specific tripartite combination (of individual + action in context).
But institutional context is vast and complex, full of millions of individuals who do not just passively bend to the intended effects of the actions taken on a particular institutional stage. Some of them occupy positions within institutions with quite expansive powers themselves, others are able to make use of much narrower powers in clever ways to undermine the effect of more powerful institutional actors.
When seeking to understand some specific set of institutions, the question I want to be able to answer intelligently is:
- Given a specific actor
- in a specific institutional context
- taking a specific action
- what is the likely effect?
But also the equal and opposite:
- Given a specific actor in a specific institutional context has taken a specific action,
- what actors
- in what institutions
- can nullify the effect of that action,
- and what action(s) would they have to take in order to do so?
In order to answer these questions, I need to have a sense of the overall character of our institutional context. How do the courts work—in practice? What are the role of congressional staffers and committees but also things like the CBO or, in the White House case, the OMB? The approach of taking the character of the institutional whole as your starting point is constitutionalism; this “whole” just is the constitution. It is the constitution as Edmund Burke understood it and it is the constitution as at least some of the Founding Fathers understood it.
However, I do not think that the constitution begins or ends with the traditional three branches. You also need to look at the agencies, and at “street-level bureaucrats” who have to implement under- or poorly-specified policies on the spot. How do prosecutors actually use their discretion? How do private actors—from landlords to corporate executives—interface with the law and lawmaking? How does the law community influence the way law is interpreted, and how do Supreme Court justices’ personal social circles influence the way they behave on the bench? How can municipal lawmakers subvert the influence of the Supreme Court?
All of these are parts of the social, political, and economic system known as our constitution.
My current project is an attempt to outline that constitution as best as I can.