Congress in different political eras. This “periodization” of constitutional interpretation outside of courts is a somewhat neglected object of study.9 Second, and related, this study will probe the factors and conditions that explain the frequency, character, and impact of constitutional interpretation by executive and legislative officials. Better assessing these factors can help us foster elements some scholars ascribe to nonjudicial interpretation such as legal and political stability, popular legitimacy and distinctive “governance capacities” of the executive and legislative branches.10 Third, a multiple orders model gives us leverage on contemporary political problems, in part because this orientation assesses the performance of our constitutional politics from a systemic rather than an individual institutional basis.11 Stated somewhat differently, identifying the competing, conflicting “orders” of constitutional interpretation at work in our political order helps us better understand some resulting forms of political dysfunction. Multiple Orders Theory Two decades ago, Karen Orren and Stephen Skowronek called on scholars of American governing institutions to transcend widely accepted academic theories about how enduring political orders are best conceptualized and described. According to the two researchers, we needed to move from traditional accounts of system development and change in which “normal” political organization is interrupted by “extraordinary politics, where equilibria are upset, norms break down, and new institutions are generated,” eventually leading to a new institutional settlement.12 While Orren and Skowronek’s examples focused on political science paradigms (including critical realignment theory, rational choice, 9 Andrew J. Polsky, No Tool is Perfect: Periodization in the Study of American Political Development, 37 POLITY 523 (2005). 10 See, e.g., FISHER, DIALOGUES supra note 1; JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY (1987); ZEISBERG, supra note 1, at 26; Neal Devins and Louis Fisher, Judicial Exclusivity and Political Instability, 84 VA. L. REV. 83, 104 (1998). 11 JACK M. BALKIN, LIVING ORIGINALISM 3-6 (2011); Peabody & Nugent, supra note 7. 12 Orren & Skowronek, supra note 1, at 316.
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