E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Sovereign immunity started with the fiction that "the King can do no wrong." Constitutional law now rests on a fiction that "the Constitution can do no wrong."
In the nineteenth century, Walter Bagehot explained that all constitutions have two components: the "efficient" part that actually governs and the "dignified" part that sustains the government's legitimacy. In England, the main dignified organ was (and to some extent still is) the Crown. In the United States, it is the written constitution that you see in the National Archives.
In practice, this means that constitutional law is not like science. If a scientific theory is debunked, nobody thinks that this undermines the scientific method. People accept that the progress of knowledge is inevitable and that the truth is subject to revision. Constitutional interpretation is different. When a doctrine or a result that is perceived as wrong, lawyers almost always use the fiction that those cases were "always wrong." (Or, put another way, that the Constitution is always right.) Even with respect to slavery, many abolitionists worked hard to argue that the Constitution was not a pro-slavery document, even though it pretty clearly was.
As I will explain in some posts after the holidays, infallibility is the most powerful constraint on modern constitutional theory. With that teaser, I will wish all of you a Happy New Year! Posted
11:19 AM
by Gerard N. Magliocca [link]