Balkinization: What Brown Teaches Us About Constitutional Theory

What Brown Teaches Us About Constitutional Theory

My new article, "What Brown Teaches Us About Constitutional Theory," has just been published by the Virginia Law Review. Here's the abstract:

This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown's key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time.
Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities.
Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.

Posted 9:25 PM by JB [link]

Comments:

This suggests that one important function of
normative constitutional theory may not be giving
advice to judges but rather offering professional
legitimation for the work of the Supreme Court.

Don't take this the wrong way, but isn't that obvious? There may be some people in the world who grew up liberal, then became conservative when they got to law school and grasped the beauty of strict construction, but the vast majority adopted strict construction because it yielded the "right answer." Politicians and there supporters care even less about the underlying legal theory that generates the results. They just want the results.

If you harbor any doubts about this, consider the eagerness with which the current rulers embrace radical change in the Constitutional framework (amending the Constitution, restricting jurisdiction, etc.). It is not the Constitution and its original intent they revere, but the results they believe flow from such a theory. As soon as the desired results diverge from the theory (as a layman might suggest they did in Bush v Gore), the theory finds itself in the dustbin.

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