THE ROLE OF EMOTION IN CONSTITUTIONAL THEORY.

• Author: Alicea, J. Joel

INTRODUCTION 1146 I. EMOTION IN THE INDIVIDUAL 1153 A. Appetite and Apprehension 1156 B. A clivation of the Appetites 1162 C. Reason, Emotion, and the Will 1164 D. Contra Aquinas ? 1169 II. EMOTION IN CONSTITUTIONAL CULTURE 1169 A. The Formation of National Character 1172 B. The Wardrobe of a Moral Imagination 1177 C. The Risks of Radicalism 1180 III. EMOTION IN CONSTITUTIONAL THEORY 1182 A. Theories of Constitutional Legtimacy and the Importance of Constitutional Culture 1183 B. Evaluating Theories of Constitutional Legitimacy 1191 1. Constitutional Theories Consistent with Popular Sovereignty 1192 2. Constitutional Theories That Might Change 1194 3. Radical Constitutional Theories 1197 C. The Effect on Constitutional Doctrine 1202 CONCLUSION 1204 INTRODUCTION

In the last three decades, law-and-emotion has become a voluminous, well-established field within legal scholarship, (1) featuring some of the academy's most important and influential scholars. (2) This development of law-and-emotion literature has proceeded in parallel with significant developments in the philosophy and science of emotions, (3) with philosophers like Martha Nussbaum integrating insights from the social and natural sciences into their study of the role of emotion in law. (4) That study has implicated many different areas of law, especially criminal law. (5)

Yet, there has been a curious lack of scholarship on the role of emotion in constitutional theory. With a few notable exceptions,'' "constitutional theor[ists] ha[ve] largely ignored a voluminous body of empirical and theoretical literature about emotion that has accumulated over the past [thirty] years." (7) There are many potential explanations for this. One explanation is that, because American constitutional theory focuses on a constitution born during the Enlightenment, it is influenced by Enlightenment-era notions of reason, in which "emotion was thought to be both more primitive and at war with rationality." (8) Another explanation could be that American constitutional theory has, for the last forty years, been framed as a debate between originalists and non-originalists, (9) and because one of the major themes of that debate has been the originalist argument that non-originalism is devoid of principle, (10) non-originalists have attempted to demonstrate the logical rigor of their theories." Both sides of the debate in constitutional theory, therefore, have had a strong incentive to emphasize the rationality of their views, which might seem inimical to considering the role of emotion in constitutional theory.

Those few constitutional scholars who have considered the role of emotion in constitutional theory--while making significant contributions--have not changed the contours of the debate within the field. For example, Jamal Greene focuses on how emotion functions as a form of rhetoric in judicial opinions. (12) Doni Gewirtzman offers a few suggestions about how emotion might affect debates within constitutional theory, (13) but his focus is less on constitutional theory and more on constitutional culture. (14) Constitutional culture is the part of a national culture that relates to the society's constitution, (15) and while it is crucial to thinking about constitutional theory, the implications of constitutional culture for constitutional theory require sustained attention. Finally, Lawrence Solum's application of virtue ethics to constitutional theory has important potential implications for the role of emotion in constitutional theory because of Aristotle's understanding of the relationship between emotion and virtue, (16) but his work does not make emotion its primary focus. (17)

To show that emotion is relevant to constitutional theory, what is needed is an integrated account that examines the role of emotion within the individual human person, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories. Such an account must draw from the deep tradition of philosophical reflection on the nature of emotion while also being consistent with insights from the modern science of emotion.

Offering that account is my task in this Article, and although the role of emotion in constitutional theory is a novel question in modern scholarship, I want to suggest that the answer to it can be found by developing a new synthesis of old sources. The relationship between reason, emotion, and the will is not a new question; nor is the relationship between emotion and constitutional culture. What is new is the need to harmonize the answers to those questions and apply the resulting account to modern American constitutional theory.

To do that, we have to begin by examining the role of emotion within the individual human person, since the role of emotion within constitutional theory depends on how emotion functions within the individuals governed by a constitution. Here, we can look to one of the most important and influential answers to that question ever offered: that of Thomas Aquinas. Aquinas's model of the emotions--his explanation of how reason, emotion, and the will relate to each other--draws upon the philosophical arguments of Aristotle, Augustine, and the Stoics, while also anticipating many of the insights from modern science. (18) Aquinas argues that our character traits form when our emotional dispositions align with what we believe to be true through reason, and those traits--depending on whether they are aligned with right reason or with error--are virtues or vices. (19)

This essential insight from Aquinas's model of emotion provides us with the foundation for assessing the role of emotion in constitutional culture, and here again, we can draw from an old source to answer our novel question, for it was partly in response to what he perceived as the French revolutionaries' lack of appreciation for the role of emotion in constitutional culture that Edmund Burke wrote Reflections on the Revolution in France. (20) There, Burke provides one of the most sophisticated theories ever developed about the ways in which emotions form, and are formed by, constitutional culture. Just as Aquinas argues that individuals form stable character traits through the alignment of their reason, emotion, and will, Burke argues that constitutional cultures form stable character traits through the alignment of a society's reason, emotion, and will. (21) He describes the ways in which societies use symbols, images, rituals, and customs--what Burke calls "the wardrobe of a moral imagination" (22)--to cultivate the affections toward a constitution that create settled character traits in the constitution's favor, thereby lending it stability over time. (23)

Burke contends that theories of constitutional legitimacy--theories that explain why members of a polity have a moral obligation to obey their constitution (written or unwritten) and the laws enacted under it--play a key role in forming constitutional culture. And just as Aquinas sees war between reason and emotion as producing instability within the individual, (24) Burke argues that a mismatch between constitutional culture and theories of legitimacy--a misalignment of emotion and reason--creates instability within a constitutional culture, potentially leading to disastrous consequences. (25) If a constitution is to remain stable, it must be supported by a theory of legitimacy that is woven into the fabric of a constitutional culture. (26) By developing a novel synthesis of the Thomistic model of emotion and the Burkean account of constitutional culture, we can see that there is a close connection between emotion, theories of constitutional legitimacy, and the stability of a regime.

If that conclusion is right, then emotion should play a significant role in evaluating theories of legitimacy, since it is morally relevant that some theories of legitimacy might imperil the Constitution's stability. (27) It also becomes important to know which theory of legitimacy accords with the emotional dispositions woven into our constitutional culture, and I suggest that popular sovereignty is that theory. (28) It follows that theorists who wish to avoid destabilizing our regime and advocate theories of legitimacy at odds with popular sovereignty would need to abandon or modify their theories or would need to explain how our constitutional culture can and should change to conform to their theories without compromising the emotional attachments that sustain the Constitution. (29)

Examples of constitutional theories that might change because of the role of emotion in evaluating theories of legitimacy include the legal-positivist theories of Richard Fallon, William Baude, and Stephen Sachs. (30) Their theories depend on an accurate assessment of our society's constitutional practices, and once we understand the essential role that popular sovereignty plays in forming the emotional attachments that are bound up with our constitutional practices, there is a strong argument that these positivistic theories must embrace popular sovereignty as their theory of legitimacy. (31)

The implications are even more acute for radical constitutional theories that are critical of America's constitutional culture, such as the nascent constitutional theory being developed by Adrian Vermeule, which seeks to root out the liberal philosophical tradition (broadly understood) that is integral to our constitutional culture. (32) If such radical theories were adopted, would the result be the erosion of "those inbred sentiments which are the faithful guardians, the active monitors of the Constitution, (33) thereby destabilizing the American regime? (34) Understanding the role of emotion in constitutional theory, then, raises difficult questions for those who would seek to change our constitutional culture.

My argument about the role of emotion in constitutional theory is a departure...