Making constitutional doctrine in a realist age.

AuthorNourse, Victoria F.

How is constitutional doctrine made? Why do some words emerge as constitutional necessities while others fade from memory? Even if we assume that all doctrine is and will continue to be formal, why do courts choose the formalisms that they do? To these large questions, there are no simple answers. Constitutional doctrine spills from the pages of the federal reporters every day, covering oceans of subject matter so vast that no single theory could possibly navigate it all. And, yet, scholars have been trying of late to articulate theories of the modern doctrinal enterprise. From right, left, and in between, they have recently joined hands to warn us of a "new formalism": that, for better or worse, doctrine is becoming more, rather than less, formal and, as a result, less accessible to the people.(1)

This focus on the "new formalism" leaves a number of questions unanswered about why we choose the doctrinal vocabularies that we do. Consider a court that creates a new doctrinal rule by focusing on a "clear and compelling interest" or the "reasonable expectations" of the parties.(2) The court is not trying to be more formalistic or obscure; indeed, the court is unlikely to be conscious of its doctrinal art. judges are too busy relying upon these terms to assume anything but that doctrine may be made this way--that it is appropriate to focus upon "interests" rather than "claims," or that there is great significance in choosing the adjective "compelling" rather than 11 substantial." Even if unconscious, these moves are nevertheless of extraordinary importance. And perhaps because of their importance, we find it difficult to remind ourselves that we are leaning upon something contingent(3)--that if the law books of the past fifty years were destroyed by cataclysm or fire, many of our most revered constitutional concepts would be gone.

Why is it that, if justice Holmes were resurrected tomorrow, he would need a translator of sorts to explain the new world of constitutional tests and factors and scrutinies? Would it be enough to explain that doctrine had simply become "formulaic" or "bureaucratic" or "methodologically obsessed"?(4) In what follows, I consider a different hypothesis: Doctrine is not simply random word-choice, but reflected job description. If doctrine has changed, it has changed because the modern Court sees its institutional strengths and weaknesses differently than it did in an earlier era. After a century spent debunking the common law ideal(5) in the name of "realism,"(6) it would be odd, indeed, if modern constitutional doctrine had not become self-conscious of the possibility of doctrinal failure. What has gone unnoticed, however, is how courts' new self-consciousness has influenced constitutional doctrine itself--how courts' embrace of the scrutiny of interests rather than the assertion of powers, their fondness for methodological queries rather than seriatim citation, reflects a peculiarly modern(7) institutional self-doubt. In other words, our answer to the resurrected justice Holmes may be that doctrinal rhetoric has changed, at least in part, because this century has witnessed a revolution in courts' image of themselves and of doctrine itself.

In what follows, I consider three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, I ask whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty.(8) In the second, I consider whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs.(9) In the third, I ask how an offhand reference to the term "fundamental" could come to describe a legal category defined by courts' own fears of illegitimacy except in an age self-conscious of the judiciary's institutional weaknesses.(10) If I am right about these examples, it may be that what was once said of modern painting's abstraction--that whatever else it was about, it was "`about painting'"(11)--is true of modern doctrine's abstraction as well: that it is about doctrine and doctrine's struggle in an age self-conscious of the possibility of doctrinal failure.

Obviously, these three examples cannot prove that doctrinal rhetoric reflects a history of shifting institutional ideals or that doctrine has absorbed a kind of institutional self-criticism. But as long as theories are being constructed,(12) I think it is worth considering an approach that neither romanticizes past ages nor repeats familiar criticisms.(13) Modem constitutional doctrine presents an important question of collective action: How do large groups of people end up speaking the same constitutional language when that language changes over time? One plausible answer is that doctrine is a practice that develops within institutions, not simply as the random acts of individual judges.(14) Indeed, those who study institutions from a distance have long understood that institutions are maintained, over time, by squeezing ideas into a common shape, a shape that carries forward, unacknowledged, an ideal picture of the institution.(15) These ideals become the default image, sustaining the institution's perceived identity relative to other institutions. When those images are challenged, the institution uses its traditional methods (here, the doctrinal category) to tame the critique, but, in doing so, recapitulates the institutional challenge (here, within the doctrine created).

In Part I, I set my position in context, surveying briefly those who have tried to capture modern doctrinal practice in larger constitutional frames. In Parts II, III, and IV, I recount three different doctrinal histories, arguing that each has been fundamentally shaped by courts' self-consciousness of the failures of a common law ideal of judging.(16) As the histories show, by doctrinalizing the critique (for example, by cabining the critique of indeterminacy in a rule that depends upon finding "unclear law"), this method accomplishes two seemingly incompatible ends: Doctrine (1) acknowledges critique; and (2) cabins it within categorical boundaries, leaving a place, outside those boundaries, where older ideals may flourish (where law is indeed "clear"). The result is that, when we go to draw the doctrinal lines, we find ourselves enmeshed in difficult questions of institutional identity (to apply the "clear law" rule, for example, we end up having to decide what counts as "law"(17)). I conclude in Part V by suggesting that, if doctrinal practice(18) operates like other social institutions, we should expect to see doctrine trying to respond to its critics, including the "realist" ones,(19) even if this effort recapitulates familiar struggles.(20) If there is a certain inevitability to all this, there are also obvious dangers. Cases themselves cannot be skeptical; inevitably, courts decide.(21) A court that truly seeks to incorporate this century's "realism"--that assumes all doctrine is uncertain or relative--cannot decide. A court that tames some popular critiques by putting conceptual edges around them (for example, by turning indeterminacy into a doctrinal search for "unclear" law) may still come to a resolution, but stops along the way to engage in a battle about its own image that may be unnecessary and divertingly self-involved. The danger here is that a court will mistake its own institutional struggles for the real-life struggles of the litigants before it, replacing the nineteenth century's constitutional arrogance with a modern constitutional narcissism.

  1. STUDYING MODERN CONSTITUTIONAL DOCTRINE

    Contemporary scholarship has devoted little effort to considering the ways courts make constitutional doctrine. If we put to the side, for the moment, normative critiques of particular doctrines(22) and focus on efforts to take a more general view, three approaches stand out. First, there are those who have sought to identify a modern style of opinion writing, and whose efforts have been largely, although not uniformly, critical of an increasingly "formulaic" doctrine.(23) Second, there are those who have emphasized the Supreme Court's audience and, again, who have been largely critical of the ways in which modern constitutional doctrine excludes "we the people."(24) Finally, there are those who have focused on constitutional rhetoric, arguing that the real object of study should be neither aesthetics nor audience, but rather the ways in which doctrine masks and shapes as it persuades.(25) Unfortunately, although each of these approaches has something to say about how doctrine is made, none provides us with a ready answer as to why modern doctrine looks and feels "different" from that of earlier eras. Indeed, each approach, in its own way, seems vaguely repetitive of arguments borrowed from an earlier era.(26)

    1. Style, Audience, Rhetoric

      To the extent scholars have tried to enumerate a modern constitutional Style,(27) they have focused on what Professor Nagel insightfully dubbed, almost a decade ago, the "formulaic constitution."(28) The idea that modem constitutional doctrine has acquired a peculiarly formalistic style was echoed in 1993 by Professor Horwitz in an incisive discussion of the Supreme Court's term,(29) and again, recently, in elegant essays by Professor Farber,(30) Professor Schauer,(31) and Judge Posner.(32) These scholars are surely right that part of the reason that modern doctrine looks and feels different is its layered reasoning style,(33) with its dull penchant for what Professor Farber has termed the "inscrutable instructions" that typically accompany tax forms.(34) Each author has provided a rich understanding of the aesthetics of modern opinionwriting in constitutional and other...

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