Sunday, December 29, 2013

Coming to a Theater Near You: Constitutionalism, Constitutional Orders and the AALS

Miguel Schor has organized two wonderful panels on “The Importance of Constitutionalism” for the Annual Meeting of the AALS at the end of this week.  The first panel (Friday, January 3, 8:30-10:15) is devoted to how ordinary citizens shape the meaning of the Constitution.  Speakers include David Cole (Georgetown), Kim Scheppele (Princeton), Reva Siegel (Yale), and Rebecca Zietlow (Toledo).  The second panel (Friday, January 3, 3:30-5:15) focuses on whether the Constitution facilitates or undermines the goals in the Preamble.  Speakers include Randy Barnett (Georgetown), David Law (Washington), Sandy Levinson (Texas), and, perhaps for comic relief, me.  All told a healthy dose of Balkinizationers and friends.

My remarks are going to be based on a new project I am starting.  My first point is that conversations about whether constitutions are working should focus on the entire constitutional order rather than, as is too often the case, on constitutional law or constitutional texts, and that one crucial facet of constitutional orders is the way constitutional politics is organized.  The way in which constitutional politics is organized, the project maintains, influences the roles of different constitutional institutions and whose understanding of the constitution becomes the official law of the land.

My second point is that constitutional politics in the United States has frequently been transformed, that The Federalist Papers belongs in the fiction section of the law school library. The rough history goes something like this.  Madison wants a "constitution against parties."  By the mid-1840s, we have a struggle over which coalition is the legitimate party of the people.  Abraham Lincoln, in this sense, is far more indebted to Martin Van Buren in his understanding of politics and constitutional authority than he is to Madison or any other framer.  Lincoln's rejection of judicial supremacy in his first inaugural is based on van Buren’s understanding of parties as constitutional interpreters, not on Jefferson’s departmentalism, which was rooted in a Madisonian separate of powers logic.  Republicans win the struggle to be the legitimate party of the people (in part by slaughtering rivals), at least temporarily, and the post-Civil War Amendments are designed to entrench that constitutional politics.  They fail.  By the 1880s and 1890s, we see the development of a new constitutional politics, one structured by competition between two non-ideological parties and an increased role for the federal courts.  The New Deal Revolution seeks to entrench this system, even as the precise regions the judges are expected to patrol is altered.  This New Deal constitutional order begins to break down in the late 1960s as constitutional politics is slowly transformed from a competition between two non-ideological parties to a competition between two polarized parties.  This is the system we have today, with the important proviso that while we have a constitutional politics structured by two ideological parties, we have a constitutional theory and a great deal of institutional practice that reflects the constitutional commitments of a constitutional order operated by two non-ideological parties.

I hope this whets a few appetites both for the panels and projects. 


  1. The first structure (by two ideological parties) seems to have permeated some, perhaps many, constitutional scholars especially since Bush v. Gore. I have offered the suggested in several recent comments at this Blog that constitutional law may be becoming a blood sport. Perhaps some band-aids should be available for the panels noted in the post. Prof. Graber's "comic relief" should be appreciated by those in attendance based upon the welcomed comic relief he has offered from time to tim at this Blog.

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  3. Is Jet Li the past pluperfect of jet lag?

    Mark Graber's post prior to this - 11/14/13 "Building Tier-Five Law" - was indeed clmic relief that at least I welcomed. To the Archives!

  4. Spam will invite opening comments for sure. Are we back to small font?

    I'm reading a book about shariah law entitled "Heaven on Earth" and just read a summary of certain classes of jurisprudence. They sounded pretty familiar (I could imagine Scalia, Kennedy, Breyer et. al. stand-ins).

  5. Joe, might the Court's stand-ins' version be titled "Hell on Earth"?

  6. I should add the author was discussing splits going back to the 9th Century and such.

    For instance, one group thought it was allowable to punish those with wineskins since they are aids to temptation. This led the other side to quip that maybe all men should be punished since they carry aids of fornication.

    Reminds me a joke in the movie "Legally Blonde." As to Shag's question, well maybe more like purgatory.

  7. Prof. Graber's closing:

    "I hope this whets a few appetites both for the panels and projects."

    is not getting the grinding, honing that I hoped for with his post. Perhaps the panelists are sharpening their blades for their presentations, with advance knowledge of Prof. Graber's new project disclsed in this post. Will the long knives be out for Prof. Graber? Perhaps they will take the bait. If so, I'm willing to bet that Prof. Graber won't "whet" his pants, merely his own blade.

    I would like details on whether the panels may be linked to via the internet, or whether there may be postings by those in attendance. I'd like to attend but it might be too conspicuous with two bags over my head (in case one breaks).

  8. I hope that Prof. Graber's new project will address originalism and its role in constitutionalism. Over at VC today I learned that Eric Posner has a new blog and I linked to it. Posner provides a very interesting chart on references to originalism in the constitutional literature with a flat line until 1980 and then a precipitous rise. ["I hate Meeses to pieces!"] Perhaps this supports my suggestion that constitutional law has become a blood sport.

  9. Speaking of originalism (as did and often do), I just finished reading Bret Boyce's "The Magic Mirror of 'Original Meaning': Recent Approaches to the Fourteenth Amendment," where the author takes on PhiPhilip Hamburger, Kurt Lash, Steven Calabresi (with Julia Rickert and with Andrea Matthews), Jack Balkin and Randy Barnett and their various forms/varieties of originalism. [The article is 58 pages in length, small font, that because of what seems be a permanent vision problem took me several days to finish with the aid of a magnifying glass.] The article is well done. And the author's Conclusion raises many concerns with originalism. A link to the article is available at the Originalism Blog and at the Legal History Blog.

    Because of the significance of the first section of the 14A in current constitutional law, the article might be of interest to Prof. Graber's new project, particularly his second point. And perhaps others on his panel might find it of interest. While the author does not use the phrase "law office history," he comes close at page 87, footnote 410.

    The cite for the article is 66:1 Maine law Review 30.

  10. Speaking again of originalism, Eric Posner's blog has an interesting post about a course he will co-teach with Will Baude "Originalism and its Critics," with a link to the course syllabus. (Will Baude has a post at VC on this.)

    Query whether this course may lead to discussion on constitutional law as a blood sport? (Think of Miller Lite's "Great Taste/Less Filling"? debate for a little buzz.)

  11. Eric Posner's blog has a post on questions for the first class of "Originalism and its Critics." He plans to provide his answers on a later post. Great questions, by the way.

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