Saturday, February 18, 2012

Cosmic Thing

Ken Kersch

Let me join Gerard in testifying that Judge Wilkinson’s new book Cosmic Constitutional Theory (Oxford, 2012) does some worthwhile things well. It surveys the landscape of contemporary constitutional theory pithily and accessibly. It critiques its main schools trenchantly.

Like Gerard, I also share Judge Wilkinson’s frustration with the apparent futility of the search for the single best “cosmic” theory of how to interpret the Constitution -- the slam-dunk that promises, besting all challengers, the best (possible?) answers to what had heretofore been the eternally vexing questions of constitutional interpretation. Like Judge Wilkinson, I don’t react well to judicial hubris and grandiosity. I think we’d all be a lot better off if judges appreciated their relatively limited (if nonetheless important) charge in our constitutional democracy. I confess to cheering – quite often without regard to my views on the underlying substantive issue -- whenever a non-judicial political actor – in an affront to the protestations of Sandra Day O’Connor (or some other grandee of the High Church of Bench and Bar) – cuts them down to size.

But… that said, I’m afraid that, for me, at least, there is still too much of ermine and incense in Cosmic Constitutional Theory to work as a wholly successful critique. I read this book as instancing the very situation it purports to criticize.

My take is (ersatz) sociological. A review of the book’s endnotes, as well as its substance, shows that Judge Wilkinson is living entirely in world of judge worship, with its support structure of fawning law clerks and A-list, superstar constitutional law professors who win prominence through theoretical buccaneering. Nearly all the citations in the book are to the work of law professors and judges, and most have been published in law reviews. I note that when Judge Wilkinson introduces the theory of “living constitutionalism,” he tells us that “it is fair to begin … with William J. Brennan.” I say – emphatically -- Why not Woodrow Wilson?

As a political scientist, when I reflect on the limits of courts (as Judge Wilkinson does along the way), I think of masterworks’ like Donald Horowitz’s Courts and Social Policy. When I think of judicial branch in context, I think of the work of Louis Fisher. I also think of broad swathes of American political thought and works in contemporary political science flying under the rubric of American political development -- scholarship which barely exists in the world of courts and courtiers of which this book remains, in spite of itself, a product.

Judge Wilkinson simply can’t help placing judges front and center. While Cosmic Constitutional Theory (admirably) argues for a more delimited judicial role, the book’s central question is all about judges. It is about what they should “decide” to do with their power – to exercise it in this particular instance, or to forbear. But whichever way the decision goes in a particular case, the underlying presumption is that it is prerogative of the judge – droit de seigneur – to choose.

OK, well, one response to this would likely be that this is a book about constitutional interpretation: it has to be all about how a judge chooses to interpret.

A reviewer is not supposed to tell the author that he should have written a different book than the one he has actually written. But, hey, this is a blog, not a real book review….

Allow me to humbly suggest that, as long as there are powerful judges and other scholars across the land devoting full chapters to each of these constitutional theorists, shooting their citation counts up into the stratosphere, cosmic constitutional theory will be alive and well in American law. And the (political) power (and social status) of judges, law clerks, and law professors will continue to grow.

I think the more serious way to cut judicial power down to size without (unwittingly) reenacting it (by affording it undue importance) is to change the subject entirely. Write a book about constitutional design instead of (yet another) one about constitutional interpretation. Take a page from Mark Graber, Howard Gillman, and Keith Whittington in their forthcoming casebook: cut the number of cases assigned in constitutional law course, and up the number of readings on the constitutional system as a whole, including constitutional argument in legislatures, the executive branch, social movements, and political culture. Be generous with statements from very smart people who aren’t overly deferential to federal judges, and are willing – for very good reasons – to give credit to Woodrow Wilson for pioneering theories of living constitutionalism (despite the sad fact that he never ended up on the federal bench, and thus vanished forever – poof! – from the world of constitutional theory). When top scholars publish two books simultaneously, one for the cosmic theorists and one that emphasizes constitutional politics more broadly, devote all of your attention to the book in the pair that everyone else is ignoring instead of the book about which they are all a-twitter (that is, read Jack Balkin’s Constitutional Redemption, and not his Living Originalism; read Keith Whittington's Constitutional Construction, not his Constitutional Interpretation)(when the sales and citation tallies for these books is reversed for each of the authors, you’ll know we are getting somewhere).

If none of this works, take a page from your betters at Yale, and start publishing novels and child-rearing memoirs.

So long as A-list status in constitutional scholarship is won by focusing attention on the wrong questions (or at least affording them inordinate attention), judges will be pushed in directions which distort our political order.

Snarkiness aside, let me be clear about the virtues of Judge Wilkinson’s book, which I noted sincerely at the beginning of this post. If I were teaching a course in (cosmic) constitutional theory, I would assign this excellent book.

But, as it happens, I’ve moved on. I think my time is better spent teaching something else. Ancient wisdom, after all, holds that ‘the ten-thousand mile journey begins with one step….’