Friday, January 10, 2014


Mark Graber

For the past hundred years or so, the study of constitutionalism in the United States has been reduced to the study of constitutional law while constitutional theory has been reduced to constitutional interpretation with a dollop of constitutional authority.  This constricted constitutionalism was rooted in basic features of the New Deal constitutional order.  Throughout much of the twentieth century constitutional commentors assumed a basic division of labor.  Elected officials engaged in pluralist bargaining.  Unelected justices made decisions on constitutional principle.  Constitutional commentary in this political universe consisted of grading past judicial opinions and telling justices what they ought to do in the present. 

We no longer live in that New Deal constitutional universe.  The two non-ideological parties that constitutional theory assumed were primary sites for pluralist bargaining have been replaced by two ideological parties that advance very different constitutional visions.  For the most part, however, constitutional theory remains stuck in the New Deal constitutional universe.  We discuss whether courts made the correct decision in such cases as Windsor v. United States, without considering what features of the broader constitutional universe explain the increasing constitutional success of the movement for same-sex marriage.  We practice an academic version of separate spheres which allocates responsibility for studying the Roberts Court to law professors, while tasking political science departments with the responsibility for studying the Republican Party.  We talk about globalization but do not require students taking constitutional law to know anything about the Constitution of the United States in comparative perspective or to explore the constitutional status of international law.

A New Introduction to American Constitutionalism is, I immodestly hope, the first major work that provides a guide to the central questions of the post-New Deal constitutional order.  The text explores such questions as what are constitutions, what purposes do constitutions serve, how do constitutions change, how do we understand the Constitution of the United States in light of other constitutional orders and international law, and, most important, how do constitutions work.  The work contains chapters on constitutional interpretation and constitutional authority, but in addition to going through various normative theories, A New Introduction also discusses various empirical theories about constitutional decision-making and authority in practice.  One major goal of the work is to bring interdisciplinary perspectives, particularly those associated with the historical institutionalist school of legal, political science and historical thought, to bear on fundamental constitutional questions.  Most law professors by now have some passing familiarity with such luminaries as Keith Whittington, Howard Gillman, and Rogers Smith, but the works of such senior scholars as Julie Novkov, Paul Frymer, Pam Brandwein, Thomas Keck, Kevin McMahon, as well as such younger scholars as Emily Zackin, Mariah Zeisberg, Justice Crowe, and Stephen Engel do not get the attention they richly deserve.  A New Introduction does not do full justice to these thinkers and many more I might/should have named, but the book does try to call more attention to the importance of the questions about constitutional politics and development that each is raising.

One central theme of A New Introduction is that, contrary to New Deal conventional wisdom, constitutions work more by constructing and constituting politics than by constraining government action.  As many friends, most notably Sandy Levinson and Mark Tushnet have pointed out, the way in which constitutions structure politics at particular times often has more influence on who gets what from government than constitutional law.  Compare, for example, present judicial performance with the most likely judicial performance had justices served for a fixed period of years, as they do in other countries.  Moreover, constitutions create, as well as order, preferences.  We ask our officials to help our economic lives rather than fix our romantic problems partly because persons socialized under the Constitution of the United States think only the former is the business of government.  Rather than focus obsessively on text, A New Introduction calls for a constitutional theory that concentrates on alignments and misalignments between constitutional commitments, constitutional institution and constitutional cultures.  This requires an understanding of formal constitutional provisions, semi-formal interpretations of those provisions, and the numerous informal constitutional practices that determine the shape of the constitutional universe. 

Like every other author of every other book, a part of me thinks that A New Introduction would be perfect for all classes, wonderful beach reading, and a great gift as baby’s first book.  To the best of my knowledge, this is the first book that explains why all you need to know about constitutionalism you could have learned by going steady in the 1950s.  My more realistic fantasy is that scholars who think that constitutionalism might be something more than constitutional law will find the book of value to their thinking and that teachers in political science, law and history will find the book both informs and challenges students interested in understanding the way in which constitutionalism in the United States does and does not work.


It has been said that in constitutional law it takes a theory to beat a theory. Larry Solum has so said periodically at his wonderful Legal Theory Blog. I don't know the origins of this but perhaps it comes from the sciences, the natural not the social. Alas, law is not a science although in the 19th century efforts were undertaken to treat law as a science. A theory in constitutional law cannot be tested in the manner of the scientific method. Just look at the proliferation since the 1980s of theories in search of the Holy Grail of constitutional interpretation/construction. And in recent weeks the legal blogs are burgeoning with the battles between originalism and non-originalism. In particular, Eric Posner's new blog and its posts on a course being offered by him and Will Baude on originalism. Will Baude at VC posts his comments and the Originalism Blog throws in its two cents. A recent post of Posner's focused on history. The role of history is addressed in great detail in Jack Balkin's article in Fordham LR last summer. I'm still laboring through Jack's article not because it is a tough read but because of vision problems. Law office history is included in discussions. How well trained is the constitutional scholar in history as compared to a professional historian? Does a "New Introduction ..." require a strong historical background? Keep in mind that lawyers are adversarial in practicing their profession, whereas (in my understanding) professional historians are not. Constitutional scholars seem to "discover" new history all the time, including members of SCOTUS. With each new discovery a new theory is presented.

As to Prof. Graber's:

" ... this is the first book that explains why all you need to know about constitutionalism you could have learned by going steady in the 1950s. "

my time in the 1950s was spent in college, law school, fulfilling my draft obligation (post-Korea) and starting to practice law. There was no time or money for going steady. And the law indeed was a jealous mistress. So I guess I have to read the book.

"For the past hundred years or so…" within the bubble.

Is it a recent discovery that the rule of law is nonetheless the rule of men? Law is politics filtered by touchstones, sentences written down to structure improvisation, which is why the previous post, on the Recess Appointments Clause, reduces to a study of grammar. What did Clinton say? "It depends on what the meaning is is." Or maybe that was William Carlos Williams.

Back when I was party to the inner workings of the ACLU, until about the age of 16, they had a policy of staying away from Second Amendment cases. Whichever way you went the choice was so clearly political that it belonged to the public and their representatives to decide. By comparison the Nazis' right to march in Skokie was a given. Call it the formalism of the obvious. These days I'm not sure I trust the ACLU on either.

The gradual retreat from science in scholarship is like a replay of the retreat from God, another version of the advance of secularism. Maybe soon we'll be done with political science. The science of history died 50 years before the Berlin wall came down.

Maybe its time to end the lie of unbiased thought.


"Whichever way you went the choice was so clearly political that it belonged to the public and their representatives to decide."

This is, to be blunt, the sort of rationalization one only resorts to, having already decided that you will not defend a particular civil liberty. The ACLU just needed an excuse to avoid defending a civil liberty they loathed.

"Well regulated Militia."
Every man his own Sherman tank.
If I make a nuke, I can keep it.
"The Constitution as I interpret it is a dead constitution"
You either interpret or not. Interpretation brings language to life.
Scalia is an idiot Brett, you're not even at his level.

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