Thursday, March 15, 2012

Is Constitutional Theory Necessary? -- Function (Part II of Two)

Ken Kersch

If “cosmic constitutional theory” is defined as a theory of interpretation of a (constitutional) legal text, all judges worthy of the name (and, as Graber appropriately points out, lots of non-judges) engage in it, in the United States, and everywhere.

But this is a canard. No one is preoccupied with this as a phenomenon to be explained or criticized.

What is really in the cross-hairs is grand theorizing about the legitimate role of a judge in a democracy – that is, judicial function. Graber properly locates and historicizes high-profile, theoretically-inflected debate about legitimate prerogatives about the (unelected, life-tenured) judge in a democracy. Of course, as Philip Hamburger and others have made clear, judicial review as a practice, power and possibility in the U.S. has a long history, pre-and-post dating Marbury v. Madison (1803). But “history’s Marbury,” where the judicial review power is worried over as aberrant, as a “difficulty” in a democracy polity requiring a highly elaborated theoretical defense, is much more recent.

Amanda Rinderle and Keith Whittington’s forthcoming article in the Hastings Constitutional Law Quarterly adduces new empirical evidence to show that Marbury was not as obscure in the nineteenth century as earlier revisionist scholarship on the decision may have suggested. They confirm, however, that Marbury’s ascent to superstardom as a case about judicial review began in the Progressive Era, when the term “judicial review” itself was coined. James Bradley Thayer played a role in this (as he did in recovering Pennsylvania Judge John Bannister Gibson’s dissent in Eakin v. Raub (1825), which he paired with it nicely), as did Edward S. Corwin. So too did the rise of casebooks, which fashioned a teaching canon for American law schools. But, of course, most important was political contention between a supposedly “activist” judiciary, and newly active legislatures, and the identification of the legislatures with “democracy” and the courts with fixed (rigid?) law (or the ideology of judges). With Thayer and Corwin, we see a new lingering over theoretical questions of judicial function (as opposed to interpretation) – what I would call proto-constitutional theory.

Graber says that “What Wilkinson calls cosmic constitutional theory is the near inevitable consequence of political and constitutional change…. When the dominant understandings of democracy, liberty, equality, justice and the like change, so will the dominant theories of judicial review, whether those theories champion activism or restraint.” But the first sentence here is very different from the second one. All theories of interpretation in law (secular law, religious law, whatever….) must deal with the problem of change. Change, in and of itself, however, does not necessarily spur the production of “cosmic constitutional theory.” Even if we limit ourselves to “political or constitutional change,” that doesn’t necessarily entail the production of constitutional theory (this is why, as raised in my previous posts, I don’t see much cosmic constitutional theory being produced abroad… though I don’t doubt there is lots of scholarship there on interpreting texts). Change is one thing. Change in “the dominant understandings of democracy, liberty, [and] equality,” however is something altogether different. It entails a rather sharp break or rupture in time, the shift to a new regime, in a political sense. Cosmic constitutional theory is one way we have of negotiating, and resisting, foundational changes in political regimes. For better or worse – quite differently from other countries, I would suppose – we give our theoretically-inclined constitutional law professors a very high-profile role in negotiating (and resisting) these political regime changes.

Things might look a lot different, one of my graduate school mentors, Theodore Lowi, used to say, if, like the French, we openly identified our constitutional development with passage through a series of distinct “republics.” The fact that the Warren Court was abandoning legal precedent left and right (well, right and right, perhaps….) – thumbing its nose at stare decisis – drove mid-twentieth century American conservatives around the bend. Regime change is effectuated here through the widespread reassessment – and abandonment -- of formerly settled legal precedent, not in a single case, or randomly distributed set of cases (that is ordinary change, through routine interpretation), but in a systematic, patterned way. This requires aggressive theoretical justification. It requires the defense of judges, on interpretive and functional grounds. It requires the re-shuffling of the prevailing constitutional canon, and anti-canon. This is cosmic constitutional theory.

As such, cosmic constitutional theory is not simply a “tool of communication,” an inevitable concomitant of a judge’s role in writing opinions or deciding cases. It is, moreover, not simply communication regarding change to “the norms and values of the present time.” It is an effort to justify the norms and values of a political regime, provoked by a sharp break in that regime, or in resistance to that break.

This, of course, may be thoroughly consistent with Graber’s views on these matters. But I did want to set out my reflections, provoked by his brief remarks, on the inevitability of cosmic constitutional theory, given the reality of political and constitutional regimes. Judge Wilkinson’s book does not discuss regimes at all in addressing the question of the value of constitutional theory, and the problem of its persistence. By failing to do so, I would venture, he leaves out a critical perspective on the question.

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