The End of Constitutional Law?
Shinar, Adam, Constitutional Commentary
ON CONSTITUTIONAL DISOBEDIENCE. By Louis Michael Seidman. (1) New York, N.Y.: Oxford University Press. 2013. Pp. xii + 162. $21.95.
Displeasure with constitutional law has been a fixture in American constitutional scholarship probably for as long as constitutional law has been around. Yet in the main, scholars have worked within the confines of the enterprise itself, trying to show how particular judicial decisions were unwise, rested on faulty logic, or were unsupported given the writer's preferred mode of interpretive methodology. Mainstream constitutional theory also accepted the premises of constitutionalism. Foundational works did not question the desirability of having a constitution or dispute the courts' power of judicial review of legislation, but rather sought to justify it. Different as they are, Bickel's The Least Dangerous Branch, (3) Ely's Democracy and Distrust, (4) Tribe's American Constitutional Law, (5) or Ackerman's We the People, (6) broadly stand for the idea that although constitutionalism and judicial review may seem problematic from a democratic standpoint, they can nevertheless be vindicated in one way or another. And moreover, that the American constitutional project, as it has developed over the years, is one worth preserving.
In recent decades, however, this approach has begun to unravel. Armed with the political insights of American legal realism and critical legal studies, the internal critique of Supreme Court decisions, while still the bread and butter of constitutional scholarship, has been supplemented by new avenues of constitutional theorizing. The problem for the new wave of constitutional scholarship did not (or not always) lie with faulty judicial reasoning, internal contradictions, or morally troublesome court decisions, but with a deep skepticism about the constitutional project as a whole. Weary of deploying the usual moves against decisions they believed to be mistaken, scholars went after the institutions that produced them, namely, the Supreme Court. The calls to end or reform judicial review grew out of an exasperation over the way constitutional law was made, the institutions in charge of its development, and what scholars believed was the harmful effect of judicial review on the political branches and on the political culture. (7)
The most important intellectual movement to emerge from this, Popular Constitutionalism, spearheaded the call to "Take the Constitution away from the Courts," or to significantly cut back on the power of judicial review. Popular and progressive constitutionalists, under various stripes, sought to shift the task of constitutional interpretation from the Supreme Court to Congress, to the Executive, to states, to lower courts, to social movements, and to the people at large. (8) Instead of focusing exclusively on the first order level of desirable or undesirable decisions, popular constitutionalists turned to interrogate the second order level of the political institutions that generate those decisions.
Despite their break with earlier constitutional theorists, popular constitutionalists still claimed adherence to the Constitution, as they sought to reclaim it from courts and return it to the "people." The problem, they maintained, was that courts have monopolized constitutional interpretation. This "judicial overhang" leads legislators to abdicate their constitutional responsibility; having non-elected judges decide constitutional issues, when those involve subjects of deep societal conflict, strips the people of their capacity for self-government. Of course, some of these arguments were not new, but they did crystallize into a more coherent movement that deployed a shared rhetoric and reasoning.
Popular constitutionalists were not alone. Others, such as Sanford Levinson and Larry Sabato, called to take stock not just of judicial review, but of the constitutional design itself. …