Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review.

• Author: Denning, Brannon P.
• Position: Book Review

OUR UNSETTLED CONSTITUTION: A NEW DEFENSE OF CONSTITUTIONALISM AND JUDICIAL REVIEW. Louis Michael Seidman. (1) Yale University Press. 2001. Pp. 260. $35.00.

A decade ago, Glenn Reynolds published a brief essay in which he invited scholars to view the activity of the Supreme Court through the lens of the then-emerging science of Chaos Theory. (3) Reynolds argued that students of the Court might learn from Chaos Theory's insight that seemingly random and unpredictable phenomena actually masked order, predictability, and stability. "Like the drop on the end of its faucet," Reynolds wrote, "a legal principle tends to expand to its logical limits, and then break off, to be replaced by a new one." (4) But "unlike scientists, who have learned better," legal scholars were still at work generating foundational theories to predict how and when this process takes place. (5) That these efforts at prediction had failed was of no surprise to Reynolds--especially as those theories attempted to predict the behavior of the U.S. Supreme Court. The Court's multi-member nature, its control over its docket, its relative lack of constraint in resolving issues before it, and the effects of politics on the Court make it particularly unpredictable. (6) For Reynolds, it all added up to the conclusion that the Court was unlikely to "ever reach a truly 'final' answer to very many questions that come before it, though most theories of constitutional interpretation seem grounded in the assumption that such answers exist. (7)

Then Reynolds asked whether this lack of finality wasn't a benefit of our system, both politically and economically. The political benefit, he argued, stemmed from "the fluidity of the Supreme Court's jurisprudence over time [meant that] no coalition is set in stone over time, and that people are often pressed to become involved in politics to protect their interests, even when the judicial system has spoken." (8) Economically, this predictable unpredictability was important because "the 'chaotic' nature of the judicial system may mean that stagnation through special-interest domination is unlikely over the long term, as periodic shifts by the Supreme Court lead to the periodic need to renegotiate political/economic alliances," which, in turn, result in the maintenance of political and economic flexibility. (9)

Reynolds's doubts about the possibility of final settlements of contested constitutional issues, and his tentative identification of benefits to a regime in which those issues were not settled--not even by the U.S. Supreme Court--have much in common with the theory put forth by Louis Michael Seidmarx in his new book, Our Unsettled Constitution. Seidman argues that we are mistaken to think that the central mission of constitutional law is to effect settlement of contested political issues. Theories designed around that vision are thus fatally flawed and doomed to failure, he concludes. Seidman instead suggests that constitutional law exists to unsettle questions that are settled elsewhere in our political system, providing those who lose in the political process an opportunity to upset political settlement in the courts. This judicial safety valve, Seidman contends, offers political losers an incentive to work within the existing political community. Because judicial unsettlements themselves can become objects for unsettlement, constitutional law has, and ought to have, an ephemeral quality that frustrates attempts to settle constitutional questions for all time.

In the pages that follow, I will summarize both Seidman's critique of constitutional theory, as currently practiced, as well as his description and defense of "unsettlement theory." Then I will highlight some possible problems with Seidman's unsettlement theory.

I

Seidman acknowledges that we are riving "in an age of growing doubt as to the utility of any normative theory of constitutional law," but he argues that we have to be able to give some account of how we approach constitutional taw, since it is not going away. (pp. 1, 3-5) A would-be theorist's challenge, then, is "to formulate a general approach to constitutional law that takes into account the intractable nature of our political disagreements instead of attempting to suppress them." (p. 7) Seidman's thesis is that "we can accomplish this task by reversing the two central assumptions upon which most prior theory has been based: that principles of constitutional law should be independent of our political commitments and that the role of constitutional law is to settle political disagreement." (p. 7)

Seidman defines constitutional law as "a system designed to prevent the polity from deconstituting. It accomplishes this task by establishing terms of agreement to which all members of the polity can subscribe (or at least can be expected to subscribe) and which prevent the polity from disintegrating when confronted with political disagreement." (p. 19) What this system amounts to, then, "is a series of metarules or principles that allow people to abstract from ordinary disagreements," which he terms "the rules of constitutional settlement." (p. 20) But, he asks, "[h]ow are these rules to be justified when people disagree"? (p. 22) It turns out, argues Seidman, that the justification for adhering to settlement rules in the face of disagreement with outcomes owe little to the rules themselves, and more to ulterior motives of those in the political community, such as the desire to preserve the group, thinking that, in the aggregate, the types of settlement will benefit one in the long run. (pp. 22-26)

These rules of constitutional settlement have a further problem, though. There is often disagreement as to the substantive content of those rules and what they require. This means, for Seidman, that constitutional settlements are bound to fail.

The settlements are supposed to allow us to resolve contested political disputes by reference to a "higher" set of rules on which there is agreement. But there is in fact no agreement on the higher set of rules, and to the extent that the competing sets of rules are foundational, there is no prospect of formulating arguments that would (or should) create agreement. Moreover, even if there were agreement, there is no reason why people should feel bound to follow the rules in circumstances where those rules produce results that are perceived as undesirable. (p. 28) Instead of seeking settlement rules that forestall or short-circuit potentially divisive political controversies, Seidman argues that constitutional law should provide a forum for those frustrated by losses in the...