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Friday, November 18, 2011

The Constitutions of the Priesthood and the Laity

Mark's post about an OWS Constitution again inspires me to share some thoughts.  (I emphasize "inspires"; my thoughts are not necessarily related to Mark's, and I've had them for some time.)  Obviously a good deal has been written about the Tea Party Constitution, as Mark notes; check out some of Jared Goldstein's writing on this in the last year.  And we could imagine the same exercise for the OWS folks, hopefully without the use of human loudspeakers.  

One way to think about these matters, I think, is to think about two different communities of constitutional interpreters.

 One is the community most of us on this blog belong to: call us the priestly caste.  Ours is a vision of the Constitution that relies on conventional texts and history, on conventional precedents, on conventional thoughts about institutional allocation, in which we participate in conventional debates over matters like the legitimacy of judicial review, and so on.  I emphasize "conventional" rather than "best" or "proper," because while I tend to think we have relied on the right sources, to some degree that conclusion depends on a process of certifying particular sources, debates, and understandings as "legitimate."  Just as the old saying goes that in order to be let into the polite society of constitutional interpreters, you have to disdain Lochner and praise Brown (neither of which is as true as it used to be), so a whole set of assumptions, sources, and vocabulary ultimately marks one as a member of the priestly caste of constitutional interpreters and allows one to participate in those discussions as a member in good standing.  

But there is also another Constitution and another constitutional debate.  Call it the Constitution of the laity.  I don't know whether it's the same as the usual discussions about "popular constitutionalism," but it obviously is closely related.  Whether it's the OWS or the Tea Party version, it will rely on a radically different set of understandings, and, especially, a different set of canonical texts and debates.  Sometimes it is a more free-flowing discussion, and sometimes it is actually and perversely more legalistic; as anyone who has dealt with a pro se plaintiff knows, people outside the  club can often be more fascinated with technicalities than people inside it, who can rely on all kinds of shared "common-sense" understandings.  Because it relies on such different texts and understandings and debates, the lay Constitution can often have, for those inside the priestly caste, a kind of occult aspect to it.  Different cases and figures will be at the center of the debate: Woodrow Wilson, Citizens United, etc.  Is this any less of a "real" Constitution?  Any less "legitimate?"  From within the priestly caste, I don't think I can answer that.  But it exists, and it will continue to exist as long as American society's conversations take place at more than one level and in more than one social circle.  It is easy for members of the priestly caste to ignore or disdain the lay Constitution, and generally that's just what they do.  But I think that is a mistake.  It is probably true, however, that the lay Constitutions will have little force unless they become translated into the understandings of the priestly caste, as long as we have a good deal of gatekeeping control on matters like what is a "legitimate" understanding of the Constitution, or of methods of constitutional interpretation.

On a related point, the last thing worth focusing on--a fascinating aspect of these two Constitutions that has gotten some attention but not enough--is that a few figures have a foot in both camps, serving as moral entrepreneurs who can explain one group to the other, or who can legitimate lay understandings of the Constitution and bring them within the realm of the priestly caste's discussions.  In the Tea Party Constitution realm, that figure is clearly Randy Barnett.  Many people have written about his success in making some interpretations and arguments that once seemed "off-the-wall" into "on-the-wall" arguments that have become points of genuine contestation within the priestly caste of lawyers, judges, and law professors.  We might get further insights into his role, and his successes, by focusing on the ways in which he has served as a bridge between the lay and priestly Constitutions.  We could think, too, about the dangers and/or obligations involved in serving as such a figure.

I don't know that anyone has served that role with respect to the OWS Constitution, if there is such a thing.  I can't say why that is, and indeed I'm not sure that there is yet an OWS Constitution.  But if there is to be an OWS Constitution and if it is to have any chance of success it will probably need a moral entrepreneur too: someone to serve as a bridge between its own "occult" understandings and arguments, and the conventional realm of the priestly Constitution.   

Posted by Paul Horwitz on November 18, 2011 at 08:04 AM in Paul Horwitz | Permalink

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