Friday, August 20, 2004

Popular constitutionalism

Mark Tushnet

Larry Kramer's recent "The People Themselves" is yet another contribution to the burgeoning (? -- really?) literature on popular constitutionalism. That literature defends the proposition that the people themselves have an important part to play in constitutional discourse (and not simply by means of electing representatives who transform the Constitution in various ways, such as those described by Bruce Ackerman). There's rather less written about how the people themselves conduct themselves in constitutional discourse.

Last night I read a characteristically elegant essay by L.H. (Lash to his friends) LaRue, "Speaking Outdoors," in the Georgia State University Law Review (vol. 19, p. 1135). LaRue describes the ways in which he, as a lawyer, engaged in constitutional discourse with non-lawyers when he worked in the Department of Justice in the 1960s. He frames his discussion by noting that he used in those discussions the narrative techniques he also used as a trial lawyer.

Here's my take on LaRue's presentation (which might not be his): Popular constitutional discourse is continuous with, not distinct from, lawyers' constitutional discourse along many dimensions. (This resonates, I think, with the old critical legal studies claim that there is nothing that sharply distinguishes legal reasoning from political argument.) Non-lawyers who engage with the Constitution refer to the framers, to the nation's traditions, to what they know of how the courts have handled similar questions, and so on. The mix might be somewhat different, largely because of differences in familiarity, but there's nothing that lawyers (typically) rely on that non-lawyers (typically) don't. But, LaRue argues, the way non-lawyers "do" constitutional discourse is different -- in particular, has a larger narrative component, in which the speaker (as teachers of writing might put it) shows what the Constitution means rather than tells it to us.

I think that's a really interesting and promising analysis, opening up a way of looking at the problem that I don't think I've seen elsewhere.


I agree with this whole-heartedly. There's an interesting feedback loop going on, though, when the "popular constitutionalists" rely upon the concept of "original intent."

I certainly agree that the theory is interesting, and for the most part I agree that the mechanism of legal reasoning is the same for lawyers and laypeople to a point. However, I'd disagree that the primary difference is one of familiarity, if only because that same familiarity leads to multiple dimensions of reasoning that I don't think lawyers can escape.

The more familiarity you have with the history of the constitution between its drafting and the present day, the more tied you are both to the degree of change in the interpretation of the constitution and to your own particularly espoused theories on where the courts should be going and what theories of legal reasoning they should be using to get there. As a result, I think the constitutional analysis performed by people with less familiarity necessary concentrates on the present as compared with an often differing almost platonic concept of what the founders would have wanted, where those who know the history of the courts tend to also look to the degree to which a particular decision changes the stream of precedent and the future consequences of not only the decision made but the theory employed to make it. The result, I think, is that the two groups tend to focus on different areas of interpretation as the most crucial, and that the issue tends to be the center of the focus for laypeople, where the degree of divergence from prior decisions and theories of the court tends to hold the most sway for lawyers. As always, imho.

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