The Michigan State Law Review recently published a symposium on Akhil
Reed Amar's The Words that Made Us: America's Constitutional Conversation, 1760-1840 (Basic Books), which seeks to offer a "usable past" by
retelling constitutional history as a "constitutional conversation."
A response by Caitlin Tully (Princeton University) shows how the trajectory of constitutional theory from
the 1970s onward foreclosed possibilities for constitutional
interpretation in the present. Here's the abstract:
Over the past several years, constitutional law scholars have struggled to repudiate what many see as the anti-constitutionalism let loose by the Trump administration. Scholars have put forth a range of proposals – from legislation that assumes a popular mandate, to constitutional amendment, to dispensing with constitutional law altogether – in response to this and related concerns. Strikingly, however, this recent turn sidelines substantive constitutional interpretation. As a result, these responses risk conceding the failure of constitutionalism even as they attempt to remedy it. This essay argues that the current impasse is not because constitutional law is inherently doomed to failure. Instead, it reflects blinders left in place by constitutional theory, the fundamentals of which we have not revisited in decades. This essay argues that scholars remain tethered to a binary between countermajoritarianism and popular constitutionalism, both of which recent experience has called into question. Popular constitutionalism’s well-documented inattention to both the specifics of legal argument and separation of powers renders it compatible with the fusion of populism and executive speech on which Trumpist politics relies; countermajoritarianism’s emphasis on courts as supreme interpreters of the law struggles in the face of the basic bad faith many see at the Court. Discussing Akhil Amar’s recent book, “The Words That Made Us: America’s Constitutional Conversation,” as a jumping-off point, I ask how we might think about the seeming failure of interpretation going forward. I argue that it would be a mistake to see the above theoretical lenses as coterminous with the possibilities of interpretation. History shows that substantive interpretation has taken different forms before; it may still yield results if, along with the theory underlying it, it can be reconfigured for the present.A response by Tom Schmidt (Columbia Law School) provides a history of how courts in the early republic went from minor voices to dominant interpreters. Here's the abstract:
This essay, written for a symposium on Akhil Reed Amar’s The Words That Made Us, explores how the judiciary transformed from a barely audible to a vociferous participant in America’s constitutional conversation in the period covered by Amar’s book. The emergence of written constitutions with special democratic authority offered a judicially tractable source of limits on government power. Then, after the Federal Constitution went into effect, the early Supreme Court Justices made a set of critical institutional choices that both strengthened the judicial voice and made it distinct from the other branches: They separated themselves from the President and his cabinet, suppressed overt partisanship, and started to speak through unified and elaborately reasoned “opinions of the Court” that were disseminated in official reports. These changes, I argue, remain the backbone of the Court’s institutional identity, and enabled the Court to achieve the preeminence it now enjoys in our constitutional conversation.Amar's response is here.
-- Karen Tani
