Temporality and Case-Based Constitutional Theory

Mark Tushnet

Catching up on my reading after my “to read” books arrived from Cambridge (after eighteen months of loneliness there), I was struck by some features of the constitutional theory books I had.

I distinguish among three types of constitutional theory. (1) Foundational constitutional theory asks questions about such matters as the relation between a people and a state, the nature of legislative and executive power, what a constitution does, and – sometimes – the minimal substantive content of any normatively attractive constitution. This sort of theory is fundamentally an exercise in political theory of a particular sort and draws upon literature in political theory often written by political scientists and philosophers.

(2) Legal-realist constitutional theory is about what the Supreme Court is going to do in the near term. It focuses on the Court’s personnel and its location in the writer’s political time and space. The content of legal-realist constitutional theory changes every time a justice leaves the Court and a new one arrives. (I was told that when Charles Alan Wright taught a seminar on pending Supreme Court cases, he had files on each sitting justice to use in developing his accounts of what the Court would do and that when a justice left the Court Wright threw out the files as no longer relevant. If that story’s true, it confirms Wright’s place is the universe of legal realists [which I think is accurate with respect to his work generally].)

(3) Case-based constitutional theory attempts to construct a normatively attractive account of the law as it is – that, attempts to arrange constitutional cases in a framework that makes sense and seems if not completely satisfactory at least normatively acceptable. This is the domain of doctrinal law professors, the best of whom (say, Laurence Tribe and Richard Fallon) are spectacularly good at it. (Political scientists sometimes try to do doctrinal analysis, but typically – and fortunately – only in relatively limited domains [“fortunately,” because political scientists, even those with law degrees, are, again typically, rather wooden in how they work with doctrine; they, again typically, can gain some facility with the cases in some well-defined domain, but rarely have the scope that the best doctrinal law professors do].)

Case-based constitutional theory is in an important sense a-temporal. Every not-overruled case is part of the set of cases that are to be used in developing the framework. Older cases might have somewhat less weight than more recent ones to the extent that they rest on assumptions about the surrounding social circumstances (and the like), which might have changed, but they always retain some precedential value, and can be retrieved and relied on as heavily as more recent ones when doing so allows the theorist to create a more attractive framework. (In my experience Tribe is the master of this technique.)

At the same time the best case-based theorists know that the substance of constitutional law changes. And sometimes the changes are substantial enough to require a substantial alteration in the framework that is the theory’s goal. Minor changes can be dealt with easily; they are like renovations of the interior of a university library made (by the designers) to make the users’ experience better even though in the eyes of some they reduce the library’s usefulness. Some more substantial changes can also be accommodated, as if – to continue the metaphor – a new annex has been bult for the library, but in a style the designers believe compatible with the original. And here too there might be a gap between the designers’ view of compatibility and the theorists’: Think of something like a Frank Gehry annex to a classical-form library; the designers will surely have a story about why the annex is indeed compatible with the original.

Sometimes, though, the changes are even more substantial – as if the library has been torn down and rebuilt from the ground up. (I personally think of these as changes that accompany shifts from one constitutional regime to another, but you don’t have to accept that account to understand the point.) And this poses a problem for case-based constitutional theory because many prior cases won’t be overruled – case-based theories can deal with that – but will simply be abandoned or forgotten.

The problem runs deeper, and it seems to me evident in a number of the works in case-based theory that I’ve read recently. Sometimes you don’t know whether a decision that doesn’t fit comfortably into the framework you’ve developed is a minor renovation or the first (or second, or …) step in tearing the old library down. Because, as Justice Souter once put it, individual cases don’t announce that they are about to work a transformation in the framework, but eventually “we know what happened.”

Here too the best case-based theorists understand the difficulty when it confronts them. (Again to revert to my own account, the difficulty arises most pressingly in periods I call interregnums between constitutional regimes, which in recent experience have last as long as a decade or so.) At those times the best works in case-based constitutional theory display some ambivalence about the entire enterprise, which from the outside might look a bit as if they are taking a stance of ironically distancing themselves from their own work (though from the inside it surely doesn’t seem to be that). Or, as with Tribe’s “suspension” (now, I think we can say, abandonment) of his work on his constitutional law treatise, the case-based theorist can give up on the enterprise and become something else.

I close with a cynical observation, that a fair amount of case-based constitutional theory doesn’t approach the sophistication of the best works. Observing renovations/replacement in progress, the case-based theorist rages against the dying of the light – which to me makes that work substantially less interesting than that of the best case-based theorists.

[If I had the intellectual energy to do it, this blog post would be the germ of a law review article, but I don’t and it won’t.]