Michael O’Hear is to be applauded for his concise summary of Professor Tribe’s argument. Thanks to Michael, the rest of us can dispense with the need to explain to the reader the contours of Professor Tribe’s thesis.
As I read Tribe’s book, I was reminded of a story told to me by a friend who was in William Nelson’s Constitutional History seminar at Yale in the mid-1970’s. Nelson apparently was arguing at that time that the ratification of the Constitution of 1789 actually made very little difference, and had the Articles of Confederation remained in effect, that document would have been interpreted to mean pretty much the same as the Constitution that replaced it came to mean.
Of course, I wasn’t in the class, but I take it that Nelson believed that the constitutional norms that emerged in post-1789 America would have developed with or without any specific constitutional text, and whatever written constitution there was would have been interpreted so that it would embrace those values. In the alternate timeline it might have been necessary to amend the constitution a bit more frequently than actually occurred, but I suspect that this point is probably correct.
To me, Tribe’s argument that constitutional norms exist independent of the text of the Constitution seems only another variant on this argument.
In fact, the manner in which he presents the argument illustrates a fundamental difference between constitutional historians and constitutional scholars. Constitutional theorists and constitutional lawyers operate within a paradigm of constitutional argument that assumes that the precise nature of arguments matter and that judicial decisions can be influenced by the logic of constitutional analysis.
Constitutional historians, on the other hand, stand outside the paradigm and simply try to understand and to explain what is going on. Historians have long realized that the paradigm is quite self-serving — it creates a role for the constitutional advocate and the constitutional theorist — and that its fundamental premises ultimately fail to jibe with the reality of judicial decision-making. Historically, judges have been much more likely to reach results in constitutional cases through the felt imperatives of “constitutional” values than by being persuaded by logically constructed arguments or imaginative textual interpretations.
Every now and then it dawns on a constitutional theorist that the primary paradigm doesn’t really make any sense, and he reports it to his colleagues as a revelation. Which it isn’t, at least for those who have studied history. Constitutional historians make this point over and over. Richard Beeman’s new book on the Constitutional Convention wonderfully illustrates the historical contingency of everything associated with the Constitution of 1789, whether it be the text itself or the ideas that were passing through the brains of various Founders. The point is not that constitutional norms are meaningless or purely fungible. Rather, constitutional meaning is an organic concept that evolves over time and which is subject to a variety of restraints. For some reason, constitutional scholars and constitutional lawyers never seem to catch on.
The problem, of course, is that constitutional advocates are required by the system in which they operate to argue in terms drawn from inside the paradigm. Even if you believe that judges decide cases on the basis of culture and common norms and that history rather than logic dictates the resolution of most constitutional disputes, you cannot say that to the judge. The lawyer has to at least go through the motions of a traditional text-based constitutional argument. It is as though we tell ourselves one story in private but require that a different one be told in public.
As law professors, we have to train our students in the art of making acceptable constitutional arguments. But we should be honest and tell them that the content of constitutional arguments and constitutional truths are two entirely different matters.
“Even if you believe that judges decide cases on the basis of culture and common norms and that history rather than logic dictates the resolution of most constitutional disputes, you cannot say that to the judge. The lawyer has to at least go through the motions of a traditional text-based constitutional argument.”
And likewise judges cannot say this in election campaigns or confirmation hearings, and their opinions have to to at least go through the motions of a traditional text-based constitutional analysis?
Great post, Gordon. I totally agree that in general constitutional lawyers and scholars do not have enough of the historical development of legal ideology. Part of this is required by legal practice, which doesn’t really permit a category of decisions that are “wrong now, but right given its historical context.” (I’m not sure how much historians use that category either, actually.)
On the flip side, though, I think historians have tended to downplay the power of ideas over the last 40 years or so, in part because it’s really hard to tell which ideas were influential and which weren’t. Among other things, that’s due to the very success of the last couple of generations of historians in uncovering all sorts of alternative influences and explanations that go beyond surface rhetoric. But an unfortunate side effect of this work, I think, is that many historians now underemphasize or even ignore the very thing the lawyers focus on — the content of arguments. Ideally, I think, the answer is that ideas matter, but they matter more or less in a certain cultural context.
When I started reading Tribe’s book, I was surprised that it began with a story about his experience teaching very young students about the Constitution. I was also surprised to learn that Tribe’s purported intention was to write a book about the Constitution for laypersons, not lawyers.
I don’t know whether Tribe means to communicate a revelation to his colleagues. If we take him at his word, he wants to expose the difference between “constitutional truths and constitutional arguments” to everyone. For some, it may be a revelation. I suspect (and hope) that for our students, it is not.