Monday, June 15, 2015

Danielle Allen and the Craft of Constitutional Analysis

Heather K. Gerken

Over at Crooked Timber, there’s a symposium on Danielle Allen’s Our Declaration, her discipline-defying book on the Declaration of Independence. Though Allen is a political theorist, I found her project displayed deep continuities with constitutional law’s, in large part because she deploys so many methodologies in her quest to understand the document. As I wrote

“Scholars typically don’t mix methodologies in this fashion, and with good reason. They worry about analytic slippage. When you can switch from one methodology to another, there’s a risk that you’ll turn to text when the history goes the other way, answer a normative question with a descriptive answer, or derive a collective commitment from a formalist flourish. 

Constitutional law, however, always mixes methodologies, which is why it is best understood less as a discipline than a craft. Constitutional lawyers are acutely aware of the risks of eclecticism. But in trying to imbue a thin historical text with sufficient meaning to guide us, they prefer to layer many interpretive methodologies over one another in order to identify a problem’s true shape and form. It’s the conceptual equivalent of creating a map with overlays of topography, population concentrations, voting patterns, socioeconomic status, and the like. Each individual overlay offers a parsimonious view, but you must look at them all together in order to get a full sense of the underlying terrain.

There is another way in which Allen’s approach resembles constitutional law’s. When constitutional lawyers turn to a text, they look not for precision, but what Ronald Dworkin calls “fit” and “justification” – a normatively attractive account that fits within the extant interpretive landscape. Constitutional analysis, in short, tries to find the sweet spot between what is and what ought to be. So, too, Allen hews to the Declaration’s text without being unduly bound by it. Her project doesn’t involve a mindless translation of past to present, but reconstruction, excavation, and imagination….

Allen’s unusual methodology puts us on equal footing with the Founders. They speak to us, but we respond with a contemporary set of questions and concerns that they could not have thought to anticipate. Constitutional lawyers love to quote Chief Justice Marshall: “it is a Constitution we are expounding,” with the emphasis on the word Constitution. Danielle Allen, in sharp contrast, puts the emphasis on the we.” 

For the full post, see here.

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