Posted by: captainfalcon | October 21, 2014

What’s the point of constitutional scholarship if law is politics?

This was bracing repartee between Orin Kerr and Erwin Chemerinsky.  I particularly liked the last exchange:

[KERR:] Chemerinsky’s answer led me to wonder about why we bother with constitutional law scholarship. If arguments about the Constitution are just thinly-veiled policy positions that cannot be separated from the author’s personal prefernces, what is the point of constitutional law scholarship? If everyone is just following their policy preferences, then academic arguments about the Constitution can’t change anyone’s mind. If that’s right, why bother writing or reading constitutional law scholarship? Chemerinsky replied:

[CHEMERINSKY:] I do not accept your characterization that arguments about the Constitution “are thinly-veiled policy positions.” Sometimes they are about text and original understanding and structure and history and precedent. But sometimes they are about policy, not thinly veiled at all, such as in what is a compelling or an important or a legitimate interest. The constitutionality of affirmative action turns, in large part, on a judgment over whether diversity in the classroom is a compelling government interest. That can be argued about and people can be (hopefully) persuaded. The constitutionality of laws preventing marriage equality turns on whether there is any legitimate (or important or compelling) interest in denying gays and lesbians of the right to marry. That can be argued over. People can change their minds, as society clearly has done as to marriage equality.

Here’s a restatement of what I understand Chemerinsky to be saying: debates about constitutional doctrine often center on disputed political issues.  Scholarship can help change people’s minds about disputed political issues and otherwise illuminate what is animating a particular dispute.  Doctrinal constitutional scholarship is valuable insofar as it does this.

As it stands, I don’t think this is an adequate reply because it doesn’t explain why constitutional scholarship is an especially good way of analyzing these political issues.  Why not recur to political philosophy, or economics, or some other field immediately focused on policy analysis to analyze what the government ought to do about an issue that falls within constitutional law’s domain?  And why not recur to sociology, or empirical legal studies, to explain what is animating different parties to a constitutional debate?

Here are three possible responses:

First, it is possible that one of the things we value politically is decisional consistency: we demand that a subset of political decisions cohere (in some sense of what it is to cohere) with past political decisions that we have made.  Constitutional law provides a useful framework with which to analyze whether this coherence obtains.  Constitutional scholarship — which tests different ways of understanding how a political decision coheres with prior political decisions — helps to ensure that this sort of coherence is respected.  It also (a more traditionally scholarly task) helps to elucidate the sort of coherence that is politically relevant.

Second, it is possible that there are certain political questions that we want to resolve not through a process of interest-group haggling, but by assimilating whatever answer we end up settling on to values that the nation accepts as legitimate, i.e. constitutional values.  (We might want to do this if it turns out that there are certain political questions that, resolved through a process of haggling, will leave groups feeling disenfranchised and thereby erode the polity’s political legitimacy.)  Constitutional scholarship plays an important role in exploring the different possible ways to connect contemporary political decisions to constitutional values.  It thus helps increase the chance that we settle on answers to political questions in ways that most stakeholders in the nation will accept as legitimate.

Third, it is possible that some political questions simply cannot be disentangled from doctrinal analysis.  It is possible, in other words, that we have so internalized constitutional rhetoric when it comes to certain political questions that we cannot effectively communicate with each other about how to resolve those questions without articulating our positions in doctrinal terms.  Constitutional scholarship could then serve to frame and make intelligible a political debate that cannot proceed in any other way.  It would also add something distinctive to our understanding of these debates that political philosophy and sociology would not, viz. an understanding of the underlying (doctrinal) interests that they implicate.

      

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