De-Schooling Constitutional Law

Article excerpt

For more than two centuries, constitutional law has been created by a dialogue between generations. As newcomers displace their predecessors, they begin to challenge parts of the legacy they have inherited while cherishing other elements of their tradition. The dynamic of challenge-and-preservation leads to an ongoing effort at synthesis--leaving the next generation with a legacy that, once again, provokes another cycle of critique and transformation as parents and grandparents leave the constitutional stage.

This Symposium begins a new round of reappraisal: Now that the civil rights generation is passing from the scene, how will the twenty-first century remember its predecessors' achievements? How did the Second Reconstruction of the twentieth century compare to the First Reconstruction of the nineteenth?

These questions won't be resolved anytime soon. But the energy and insight of the Symposiasts testify to a continuing devotion to the project of popular self-government initiated at the Founding. To be sure, all participants are very privileged members of the academy. If popular sovereignty is to survive, it will require more than the commitment of an elite corps of legal scholars. But it is very important for each of us to look beyond our special insights and contribute to a larger dialogue that reaches beyond the academy to our fellow Americans.

So what more can I contribute at this stage?

On reading the essays, I see that I have at least one comparative advantage. This arises from the very long time--more than thirty years!--it has taken me to carry out my project. As a consequence, I encountered a special difficulty in writing this book. (1) On the one hand, lots of people are very interested in the civil rights revolution, and I wanted to make my presentation reader-friendly. It would have been a real turn-off to announce that people should go back and study volumes one and two--along with other books (2)--before plowing into my analysis of the civil rights era. But on the other hand, there really are many deep relationships between this book and its predecessors. So I tried to suggest the linkages only when they were absolutely essential.

I have failed. For perfectly sound reasons, my commentators have focused on this book, not the entire series. And since they have probed far deeper than the ordinary reader, I failed to provide sufficient leads to relevant arguments presented in earlier volumes. This was inevitable: You can't write one book and three books at the same time. Call it the multivolume problem. Nevertheless, I can help remedy this deficiency by elaborating the links between The Civil Rights Revolution and earlier arguments.

My larger aim, though, is to build bridges between interpretive schools that generally don't have much to say to one another-textualism, on the one hand; common law constitutionalism, on the other hand; popular constitutionalism, on the third hand; critical constitutionalism, on the fourth; and there are even more hands clapping to different beats in other juristic circles. One of the things the Constitution constitutes is an interpretive community--enabling Americans with profoundly different beliefs to talk to one another, rather than past one another, as they hammer out collective solutions to their common problems. I want to suggest how my framework can help bridge the yawning chasms that increasingly separate different "schools" of constitutional law.

And finally, I will address some of the big substantive questions provoked by my interpretation of the civil rights legacy.

But let's start with a search for common ground.


A. Originalism

Like Professor Barnett, I begin with the text's opening words, "We the People," and struggle to grasp the original understanding of its meaning. (3) But we part company at this point. I not only disagree with his interpretations, but believe that they are self-defeating within their own terms. …