A Present Past: The Fallacy of Institutional Maintenance

The idea that institutions are functions of complex processes that evolve gradually over long periods is taken-for-granted. In spite of this, our understanding of the past and how it informs current institutional configurations remains under-theorized. Where work exists, it tends to be overly literal–treating the past as a sequence of path-dependent, static events. In contrast, we theorize the past as a fluid resource (more stable or more fragile) that is interpreted in the present. The resulting model situates institutions both synchronically in nested hierarchies and diachronically in layers of sediment. We augment this model with a case-study of an essential U.S. institution (constitutional law) and the organization that embodies it (the Supreme Court). In particular, we analyze two Court decisions that define the constitutionality of the death penalty and reveal two conflict mechanisms (subversion in the present and excavation of the past) that must combine in order for change to occur. From this anal...