Tuesday, April 6, 2021

Bassok on Constitutional Thought and the Havard Law Review Forewords

Or Bassok, University of Nottingham Faculty of Law and Social Sciences, has posted Beyond the Horizons of the Harvard Forewords, which is forthcoming in volume 70 of the Cleveland State Law Review (2021):

American constitutional thought is controlled by certain paradigms that limit the ability to think beyond them. A careful reading of the Harvard Law Review Forewords—the “tribal campfire” of American constitutional thinkers—is one way to detect these paradigms. Based on reading these Forewords since their inception in 1951 and until 2019, I track how the concept of judicial legitimacy has been understood over the years. My analysis shows that in recent decades an understanding of judicial legitimacy in terms of public support has risen to the status of a controlling paradigm. While this understanding is currently considered commonsensical, it stands in tension with an understanding of judicial legitimacy in terms of expertise that goes back to Alexander Hamilton and dominated the Forewords up until the 1960s. Rather than viewing the Supreme Court as requiring public support to function properly, according to the Hamiltonian view, the Court requires “merely judgment.” Tracking the genealogy of judicial legitimacy in the Harvard Forewords also shows how the shift from Hamilton’s understanding of judicial legitimacy to the current understanding was connected to the invention of public opinion polling. This invention allowed for the first time in history to measure public support for the Court. Before this invention, with only elections as the accepted tool for measuring public support, understanding the Court’s legitimacy in terms of public support was impossible. With the rise of opinion polls as an authoritative democratic legitimator, the concept of judicial legitimacy changed as is reflected in the Harvard Forewords.

That “tribal campfire” metaphor is pretty terrific, especially when you remember that someone was always getting roasted.  

–Dan Ernst