Virtual Book Club: Constitutional Historians and Constitutional Theorists

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.

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Virtual Book Club: Tribe on the Invisible Constitution

As announced earlier this semester, several faculty members have been reading Laurence Tribe’s The Invisible Constitution.  I hope that we will be having a series of posts and comments on the book.  I have just finished reading it.  A few very general reactions will be offered here.

Tribe’s interest is in a set of principles that have come to be accepted as constitutional in nature, but that appear nowhere in the Constitution’s written text.  He lists as examples:

  • Courts must not automatically defer to what elected officials decide the Constitution means.
  • Government may not torture people to force information out of them.
  • In each person’s intimate private life, there are limits to what government may control.
  • Congress may not commandeer the states as though they were agencies or departments of the federal government.
  • No state may secede from the Union.  (28)

In developing his thesis that the Constitution contains such invisible “dark matter,” Tribe implicitly situates himself in opposition to the formalist school of constitutional interpretation, which emphasizes the written text of the Constitution and historical documents from the framing era that shed light on the meaning of the text.  Tribe instead understands the content of the Constitution to evolve over time, even without formal amendment of the text. 

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Progressive Originalism

The March 14 edition of the Wall Street Journal carries an interesting story regarding efforts to use “progressive originalism” in upcoming precedent-potential cases. The Journal reports that the Center for Constitutional Accountability, a progressive public interest law firm run by Doug Kendall, and several liberal-leaning legal academics have undertaken a sustained effort to revive the Privileges or Immunities Clause of the 14th Amendment. The Journal reports:

So-called progressive originalism departs from the conservative strain by shifting focus from the 18th-century constitutional text to the three Reconstruction amendments ratified after the Civil War. . . . Viewed through the Reconstruction prism, the “Constitution turns out to be way more liberal than conservative,” says Yale law professor Akhil Reed Amar, a leading proponent of progressive originalism. . . . By applying methods blessed by conservatives to the neglected texts and forgotten framers of the Reconstruction amendments, liberals hope to deploy powerful new arguments to cement precedents under threat from the right and undergird the recognition of new rights.

The Journal’s report struck me as particularly interesting when juxtaposed alongside an article authored by Marquette alumnus Keith Alexander (BA ’98, MA ’00) and published recently in the Texas Review of Law and Politics. In developing an argument regarding the federal partial birth abortion ban, Alexander focuses on the original meaning of the 14th Amendment’s Equal Protection Clause:

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