Friday, September 25, 2009

The Constitution in 2030

Guest Blogger

For The Constitution in 2020 Conference, October 2-4, 2009 at Yale Law School. Crossposted at The Constitution in 2020 blog.

Paul Horwitz

There are revolutions, and then there are Revolutions. The big, capital-R type Revolutions are the major sea changes in the way we think and act or in our political structures, the moments in which some concept moves, seemingly overnight, from being unthinkable to being incontestable. Then there are revolutions, in something like the literal sense: the same old turning of the wheel, bringing the return of some set of ideas or political views to dominance, but with the certainty that its moment will inevitably pass, and return, and pass and return, and so on. These small-r revolutions are the stuff of our usual politics. They are one reason (the other may be summed up in a name: Keith Moon) why the Who’s “Won’t Get Fooled Again” still sounds fresh. “Meet the new boss….”

What do the authors of The Constitution in 2020 want: a revolution, or a Revolution? Are they interested in something genuinely new, a real paradigm shift in how we conceive of the Constitution? Or are they really just looking for a regime change, one that will bring them the results they want but that is destined to be merely temporary? Are they just talking about what Barry Friedman describes, in literally revolutionary terms, as the inevitable cycles of constitutional theory, or do they want something more?

This is a collection, not a manifesto, and so there is incomplete agreement on this question. Cass Sunstein, for instance, argues for a minimalist approach to constitutional interpretation on the courts, one that inevitably will result only in gradual shifts from current doctrine in the vast majority of cases. And Jack Balkin and Reva Siegel, in their introduction to the volume, argue that part of “our obligation to the Constitution” involves “[l]iving in faith with the past.”

But there are hints of something more Revolutionary in The Constitution in 2020. Balkin and Siegel also write of the Constitution as “a bond with the future, expressing commitments that the American people have yet fully to achieve.” They seek “ new mobilizations that emphasize a new constitutional vision that better articulates enduring constitutional values” – a sentence in which one might choose to stress either “enduring” or “new.” Robert Post and Reva Siegel speak in Revolutionary terms too, urging a counter to the “conservative insurgency” and “conservative mobilization” of recent decades that consists of a new “substantive constitutional vision.” Certainly many of the individual contribtutions to The Constitution in 2020 really amount to tinkering around the edges of current doctrine. But one gets the sense that at least the editors of this collection would like to frame their project in more Revolutionary terms.

If that is actually the case. then I want to suggest that The Constitution in 2020 is the wrong title for the book. Small-r revolutions, mere turnovers in power, happen relatively frequently. Big-R Revolutions are a different matter altogether. They do not happen often or overnight. Paradigm shifts, like rockslides, only appear to happen all of a sudden. In reality, they develop slowly before they happen quickly.

Consider what Post and Siegel call the “conservative insurgency” in constitutional law. It did not happen suddenly, and its Revolutionary phase was preceded by a long and slow revolutionary phase. It was easy enough for the Reagan administration to start restocking the federal judiciary, but even that development required it to draw on an existing group of potential judicial candidates, many of whom came to prominence in the Justice Department of President Gerald Ford. In keeping with its small-r revolutionary nature, this initial change in the courts was relatively modest at first. Outcomes changed, but only incrementally, in part because the new judges differed more in ideology than in methodology from the judges of the ancien regime. For a genuinely Revolutionary movement to emerge on the courts, a long and slow process of education was needed. Breeding grounds for a new constitutional vision, represented by such developments as the birth of the Federalist Society, had to come first, and the young lawyers who formed the shock troops of this movement had to make their long march through the institutions. Over the course of time, judicial conservatism itself had to change, from a modest revolutionary stance to a more Revolutionary worldview. The process did not take ten years; it took between twenty and forty years.

But The Constitution in 2020 looks only a little more than a decade ahead. In that short time, we might see some small-r revolution on the federal courts. We might see the outs become the ins, and liberal rulings might replace conservative ones. But we are unlikely to see any Revolutions in so short a time. Science fiction in the 1950s looked a couple of decades ahead and imagined that we would soon be moving around with jetpacks and serving our robot overlords; by the 1970s, all that managed to happen was that we replaced our eight-tracks with cassette players. The same thing is likely to prove true if we try to imagine a genuinely Revolutionary movement in constitutional interpretation but place it just around the corner, temporally speaking.

Now imagine a genuine Revolution in constitutional thinking. It would not consist of the replacement of conservatism with liberalism, or “progressivism.” That might have its value, but it is still pretty penny-ante thinking. Imagine, however, that a constitutional vision developed that paid more than lip service to the idea of “the Constitution outside the courts.” Suppose we tried to place the center of gravity for constitutional theory and interpretation outside the judiciary altogether, and instead shaped new ways for citizens and lawmakers to take primacy of place in the act of constitutional interpretation.

Or suppose – and I and several others have argued for this view – that constitutional lawyers concluded that there is something dissatisfying about the whole enterprise of constitutional interpretation, which focuses on legal doctrines shaped by acontextual legal concepts, and instead decided that it is important to “think things, not words,” as Justice Holmes once said. Such a vision would require us to rebuild constitutional law from the ground up, replacing lawyers’ usual ways of thinking about the world with one in which legal doctrine emerges from actual social practices and the social institutions that provide a space for these practices rather than trying to impose a legalistic vision from the top down. (Thus, Mike Dorf and Charles Sabel have written powerfully about a “Constitution of democratic experimentalism.”) The lawyers – and, eventually, judges – who championed such a movement would need a radically different form of education, one that is far more knowledgeable about social practices and institutions and their evolution than current legal education provides. They would need to make their own long march through the institutions, and the institutions themselves would have to change to provide them the resources they need to rethink constitutional law.

Now, this might be truly Revolutionary thinking. But like all such Revolutions, it will not happen overnight – or even in a decade. We would need to start now to rethink legal education and legal doctrine, to provide a super-structure of supporting ideas in constitutional scholarship, and to educate a new generation of lawyers to a new way of thinking. We would have to think about the Constitution in 2030, not the Constitution in 2020. And that might still be overly optimistic.

If the editors and authors of The Constitution in 2020 want to encourage a real Revolution in constitutional law, then, they will need to start by rethinking their title. On the other hand, if all they want is a revolution – if all they really care about is the development of more or less the same old ways of thinking, but from a progressive rather than a conservative perspective; if they just want to be the “new boss” for a while, with a corresponding change in outcomes – then 2020 seems like a reasonable date to shoot for. That is time enough for the new guard to take over. Unless we are just motivated by politics and a concern with outcomes in particular cases, though, that does not seem so terribly worthwhile a goal. It is certainly a short-sighted one: if all we are concerned about is a shift in who holds the reins of power, instead of a real shift in how we think about the Constitution, then the “progressive” Constitution of 2020 will be replaced by a conservative Constitution in 2040, and so on. Instead of planning for a constitutional revolution in 2020, perhaps we might instead try to imagine what a real constitutional Revolution might look like – in 2030.

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