For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).
John Fabian Witt
In one sense, the triumph of the procedural in twentieth-century legal theory is a puzzling phenomenon. In 1980, at what was perhaps the high point for the so-called process school of constitutional law led by John Hart Ely, critics like the liberal Laurence Tribe and the leftist Mark Tushnet objected that process stories in legal theory obscured underlying substantive commitments. Value-free adjudication based in process, to use Tushnet’s formulation, was impossible; process-perfecting theories, in Tribe’s words, could not banish the fights over substance that had brought them into being. After all, what could explain the selection of one or another process other than the pursuit of some substantive social project?[1]
Yet dealing directly in substantive truths, alluring as it may be, quickly runs into difficulties of its own. In legal theory, substantive visions for how we should live together run headlong into a problem of justification. In his book’s stage-setting sections, Parker tries to sketch an old world of foundations and substance. But the old world, purportedly before process, gave an awful lot of attention to process questions. In law, arguably the most important development of the nineteenth century was the conversion from the old common law writ system to the Field Code system of pleading. Famously, both of these were procedural systems (or, in the archaic variation, “adjective law”). Parker describes the common law as a historical accumulation of customs. But that was and is a highly ideological, even tendentious description of the field. The common law might better have been described as a process for deciding when the king’s sword could be deployed in the resolution of disputes. Henry Sumner Maine certainly thought so when he wrote that in the common law’s crabbed writ system method “substantive law” was “gradually secreted in the interstices of procedure.”[2] The Field Code, in turn, carried a focus on the procedural into the modern era. David Dudley Field prepared codifications of virtually the entire common law. But it was only in the domain of procedure that his work became law.[3]Analytically, the underlying descriptive challenge for Parker is that virtually all observable phenomena are susceptible to characterization both as states, on the one hand, and as processes, on the other. Most things are both at once. At least since Darwin, life has been describable as a process. But of course it is also a condition. Falling in and out of love is a process. But joy and heartache are truths. In law, the point emerges from the highly technical line of cases every first year student learns. Beginning with the landmark 1938 decision in Erie v. Tompkins, it became crucial for the lower federal courts to decide whether an issue was substantive or procedural. But of course the courts could barely even begin to do so. The questions at issue were both at once. As in life and love, the answer depended on how the courts chose to frame the problem.[4]
Parker’s leading examples of the proceduralism of twentieth-century social theory share this same deep duality of process and substance. He invokes Alexander Meiklejohn’s famous theory of free speech as a procedural value in self-government.[5] But, of course, democracy is a principle as well as a procedure. The meeting of supply and demand is a process. But prices are an equilibrium state. Pluralism in political science contemplates government as a process of interactions among groups. But peaceful coexistence in a political unit offers itself as an ideal state of being. Ely offered “green pastel redness” as the reductio absurdum of the notorious doctrine of substantive due process. But the doctrine’s mash-up of method and foundations may in the descriptive sense be true to the doubleness of legal theory. Substantive due process’s multitudinousness appears in this sense to be a feature, not a bug.[6]
* * *
Parker’s project is to ask what it means when social and legal theory chooses one of these two available modes of description and analysis. What is entailed in giving pride of place to the process frame over the substance frame?
One thread that runs through the book, though mostly implicitly, is the centrality of capitalism’s structuring role. The long chapter on the turn to process in economic thought bears this out most clearly, but in a deeper sense the entire book is set against the ceaseless churn of modern capitalism’s creative destructive. It is, Parker tells us on more than one occasion, the condition of constant change that leads we moderns to make recourse to process as a way of making sense of and managing the world in flux around us. It’s as if thinking in processes rather than foundations is a mechanism of grappling with the social acceleration of modern capitalism.[7]
For my part, I might have been inclined to emphasize two additional features of modernity, namely globalization and democracy, each of which made salient a collateral artifact, disagreement. In this respect, process bids to be the master principle not merely of the past century and a half, but of the last half-millennium. Parker assimilates John Rawls to the procedural universe, and the truth is that the entire social contract tradition stretching back to Grotius and Hobbes advanced a procedural model of social relations. In Grotius’s version, in particular, the laws of war and peace among of nations arises out of the thought-experiment of a hypothetical process based of rational agreement. Something of the same structure is evident in the treaty-like features of the U.S. Constitution, where James Madison’s Federalist 10 famously contemplates the Constitution as constructing a process in which the ambitions of factions cancel one another out.
* * *
One of the most valuable features of Parker’s book is its illustration of the many purposes to which the process frame can be, and has been, put. The turn to process served to legitimate the rising administrative state, where the administrative process could do much of the work of the legal process. Yet the process fixation also became a mechanism by which critics articulated and advanced objections to administration’s supposed tyranny. The scientific method embodied in Kenneth and Mamie Clark’s psychology underwrote Brown v. Board of Education. But the rise of a legal process school that aimed to manage the temporality of change (a wonderful Kunal Parker formulation) also licensed Brown II’s “all deliberate speed” slowdown. Process theory undergirded Thorsten Veblen’s critique of the marketplace – and also helped build Hayek’s fantasy of a perfect market machine for processing information about human desire.
There are a few stray awkwardnesses in The Turn to Process, though they are generative interpretive provocations rather than errors. I am not at all sure that the nineteenth-century of the Field Code and the Due Process Clause was an era of foundational truths. By the same token, twentieth century legal theory fought hard over contested truth claims even as it undoubtedly elevated the processes for milling them into a workable social order. When the early Frankfurter delivered The Public and Its Government at Yale in 1930, his administrative state solution to the remoteness of truth in modernity’s Great Society was not based on process but expertise.[8] A decade later, when he wrote the decision in Minersville School District v. Gobitis (1940), he was (pace Parker) not celebrating Burkean proceduralism or championing a legal process of institutional competences. At least he was not primarily doing these things. More than anything, he was an immigrant binding himself to the flag of patriotism.[9]
My forthcoming project on the social mobilizations and ideas that coalesced between the wars proposes a view diametrically opposite to the one Parker puts on offer here. Parker’s big picture story is about the rise of process and uncertainty as a master principle for the twentieth century American legal and social thought. And who can doubt that pragmatisms and proceduralisms helped legal elites manage the massive social change of the first modern century? If, however, we want to understand the ideas and movements with which the system managers found themselves grappling, we will be back to fierce conflict among rival foundational claims. It was surging interwar social movements of labor and race liberation and civil liberties that remade American law in the twentieth century. And they appealed not to processes but to new truth claims, which they asserted and forced onto the national stage.
At the book’s end, Parker disclaims that his book is a jeremiad for the lack of substance. It is not, he writes, a declension story about loss. In a sense, he is right. The book is too thoughtful to adopt the tendentious interpretation of pragmatism that John Patrick Diggins (with whom Parker begins his book) trotted out three decades ago. Process has virtues and vices, Parker tells us, and his book is an interpretation of social theory in the era in which process bid for hegemony. Yet I couldn’t help but feel upon reaching the end and reluctantly putting the volume down that it embodies something of the yearning and the ache of the alienated social theorists it describes. What Parker’s social theorists really want, in their heart of hearts, is a millennium—a resting place against the ceaseless current, a destination in which fundamental truths might at last express themselves. Perhaps an equilibrium, to use the language of Parker’s economists, would suffice, or maybe a mere waystation. The stark beauty of Parker’s book is that it offers us the journey.
John Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law at Yale Law School. You can reach him by e-mail at john.witt@yale.edu.
[1]
Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89
Yale L.J. 1063 (1980); Tushnet, Darkness on the Edge of Town: The Contributions
of John Hart Elu to Constitutional Theory, 89 Yale L.J. 1037 (1980).
[2]
Henry Turner Maine, On Law and Early Custom 389 (1883).
[3]
Kellen Funk & Lincoln Mullen, “The Migration of the Field Code,” SocArXiv
Papers, https://osf.io/preprints/socarxiv/nfg92.
[4]
John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 695
(1974).
[5]
Alexander Meiklejohn Free Speech and Its Relation to Self-Government (1948).
[6]
John Hart Ely, Democracy and Distrust 18 (1980).
[7]
Hartmut Rosa, Social Acceleration: A New Theory of Modernity (Jonathan
Trejo-Mathys, trans., 2013).
[8]
I try to make this point in chapter 17 of my forthcoming book, The Radical
Fund: How a Band of Visionaries and a Million Dollars Upended America, which
will be out in the fall of 2025.
[9]
Brad Snyder, Democratic Justice: Felix Frankfurter, the Supreme Court, and the
Making of the Liberal Establishment 350-61 (2022).