Qualifying Realism
As I've spent a fair amount of time advancing Realist notions, I thought it might be time about three years into the blog to note some limitations in my mind on the Realist position I so strongly advance at times. In so doing, I invite you to consider a hypothetical universe in which it is suggested that our preamble be changed to the following:
We the People of the United States, One Nation under God, in order to form a More Perfect Union . . . .
To the non-Americans who are unaware, it's the One Nation under God bit that isn't there now. I think it's fairly uncontroversial to say two things. The first of these is that the most likely reading of this by a Court is that it isn't what a Realist like me would call "legal". In other words, it doesn't actually change the application of the Constitution in any meaningful way. It doesn't permit establishment of religion, it doesn't permit restricting the free exercise of religion. It is possible that the provision could be read to advance a narrower view of the Establishment Clause, I would of all people emphasize the contingency of doctrine, but I think that if you thought solely of application, you'd have to think of this clause as being of relatively marginal importance and potentially, depending on how it unfolded, meaning wrapping in all the extralegal factors that go into adjudication, of no application whatsoever. You could say that it would allow symbolic references to God in governmental proceedings because the constitution mentions God now, but guess what, symbolic matters are already allowed, Justice Douglas tells us the Constitution presupposes a Divine Being (don't know how, but okay), prayers are recited all the time in Congress. So in application, again, potentially meaningless.
The second thing I would say is uncontroversial is that such a proposal would whip up a firestorm of controversy--from passionate defenders ready to devote hours on end to enactment to uncompromising opponents who would seriously consider giving up US citizenship if it was enacted. And yet, again, not very much of it would be related to anything that would actually affect very many people in this country.
Much the same can be said of the endless debates in Islamic constitutional states respecting whether the shari'a is or should be "a source", "a foundational source" "the source" "the main source" or whatever of legislation. I've pilloried fellow scholars who take this seriously and in true Realist fashion have described it as transcendental nonsense. At one level, it is, and I defend my criticisms against those who try to make the clauses mean something in their application. They don't, legislatures aren't using the shari'a as a basic source of legislation in commerce, or even a source except at the real margins. There IS shari'a on commerce, there ARE juristic rules on sale, nobody drafting modern law even knows what they are, let alone cares about them. Or that's my experience advising Arab lawmakers. So on one level, this is a red herring (exception for Egypt where the SCC did interpret the clause to mean something though exactly what nobody really knows it's too idiosyncratic to make sense of I submit, kudos to Clark Lombardi in any event for not musing on what the words mean but going into what the SCC actually does).
But then at another level, a level I guess I'd call the nonlegal, obviously it means something to people. Otherwise you wouldn't be able to explain precisely why there is so much passion in the debates. In other words, it's not that Realism is wrong, Realism is the tool by which one may identify what this debate is NOT about. It is NOT about recreating fiqh in commerce, for example, because nobody is really seeking to do that. I don't retreat an inch on this, I think the academy is wrong because of its incessant desire to make some of these clauses mean something in application that they don't.
But Realism isn't telling you what it is about. The debate clearly is about SOMETHING, you'd have to dismiss the whole lot of impassioned arguments as the rantings of lunatics to decide otherwise. Now on its own my Realist side doesn't mind that passion is aroused about SOMETHING, I can't imagine Karl Llwellyn the Doyen of Realism would mind it either--I imagne he'd just tell you this phenomenon of excitement is not law whatever it is. That doesn't make it stupid, it's just nonstupid nonlaw is all.
And that's true on some level, but there is a rub. If one wishes to say this isn't law, and leave it to others to explain, then one is then saying necessarily that a great deal of constitutionalism isn't about law and abandoning much of the field to others. OK, but in that case no person could credibly be describing what the constitution IS, in any society, without going beyond the law. Realism isn't wrong, I'd be the last person to say that, but it cannot possibly describe a constitution, in negotiation or evolution, on its own because it excludes too much.
I've come to think of this as I consider the Iraqi constitution, review its provisions over which there is deep division, and realize to my own Realist tended surprise that a good half of them have nothing to do with anythng that anyone would ever consider applicable in any meaningful way. It's fascinating to see,and important to consider but it has to be in a prism that views the constitution as being more than an instrument applied by a neutral judiciary. Too much debate goes well beyond that prism, and the story would be missed if the focus remained so narrow.
This is all dealt with in much more thoughtful detail in my upcoming book, which will be out soon. Or not really soon, but I'll keep everyone posted.
HAH
We the People of the United States, One Nation under God, in order to form a More Perfect Union . . . .
To the non-Americans who are unaware, it's the One Nation under God bit that isn't there now. I think it's fairly uncontroversial to say two things. The first of these is that the most likely reading of this by a Court is that it isn't what a Realist like me would call "legal". In other words, it doesn't actually change the application of the Constitution in any meaningful way. It doesn't permit establishment of religion, it doesn't permit restricting the free exercise of religion. It is possible that the provision could be read to advance a narrower view of the Establishment Clause, I would of all people emphasize the contingency of doctrine, but I think that if you thought solely of application, you'd have to think of this clause as being of relatively marginal importance and potentially, depending on how it unfolded, meaning wrapping in all the extralegal factors that go into adjudication, of no application whatsoever. You could say that it would allow symbolic references to God in governmental proceedings because the constitution mentions God now, but guess what, symbolic matters are already allowed, Justice Douglas tells us the Constitution presupposes a Divine Being (don't know how, but okay), prayers are recited all the time in Congress. So in application, again, potentially meaningless.
The second thing I would say is uncontroversial is that such a proposal would whip up a firestorm of controversy--from passionate defenders ready to devote hours on end to enactment to uncompromising opponents who would seriously consider giving up US citizenship if it was enacted. And yet, again, not very much of it would be related to anything that would actually affect very many people in this country.
Much the same can be said of the endless debates in Islamic constitutional states respecting whether the shari'a is or should be "a source", "a foundational source" "the source" "the main source" or whatever of legislation. I've pilloried fellow scholars who take this seriously and in true Realist fashion have described it as transcendental nonsense. At one level, it is, and I defend my criticisms against those who try to make the clauses mean something in their application. They don't, legislatures aren't using the shari'a as a basic source of legislation in commerce, or even a source except at the real margins. There IS shari'a on commerce, there ARE juristic rules on sale, nobody drafting modern law even knows what they are, let alone cares about them. Or that's my experience advising Arab lawmakers. So on one level, this is a red herring (exception for Egypt where the SCC did interpret the clause to mean something though exactly what nobody really knows it's too idiosyncratic to make sense of I submit, kudos to Clark Lombardi in any event for not musing on what the words mean but going into what the SCC actually does).
But then at another level, a level I guess I'd call the nonlegal, obviously it means something to people. Otherwise you wouldn't be able to explain precisely why there is so much passion in the debates. In other words, it's not that Realism is wrong, Realism is the tool by which one may identify what this debate is NOT about. It is NOT about recreating fiqh in commerce, for example, because nobody is really seeking to do that. I don't retreat an inch on this, I think the academy is wrong because of its incessant desire to make some of these clauses mean something in application that they don't.
But Realism isn't telling you what it is about. The debate clearly is about SOMETHING, you'd have to dismiss the whole lot of impassioned arguments as the rantings of lunatics to decide otherwise. Now on its own my Realist side doesn't mind that passion is aroused about SOMETHING, I can't imagine Karl Llwellyn the Doyen of Realism would mind it either--I imagne he'd just tell you this phenomenon of excitement is not law whatever it is. That doesn't make it stupid, it's just nonstupid nonlaw is all.
And that's true on some level, but there is a rub. If one wishes to say this isn't law, and leave it to others to explain, then one is then saying necessarily that a great deal of constitutionalism isn't about law and abandoning much of the field to others. OK, but in that case no person could credibly be describing what the constitution IS, in any society, without going beyond the law. Realism isn't wrong, I'd be the last person to say that, but it cannot possibly describe a constitution, in negotiation or evolution, on its own because it excludes too much.
I've come to think of this as I consider the Iraqi constitution, review its provisions over which there is deep division, and realize to my own Realist tended surprise that a good half of them have nothing to do with anythng that anyone would ever consider applicable in any meaningful way. It's fascinating to see,and important to consider but it has to be in a prism that views the constitution as being more than an instrument applied by a neutral judiciary. Too much debate goes well beyond that prism, and the story would be missed if the focus remained so narrow.
This is all dealt with in much more thoughtful detail in my upcoming book, which will be out soon. Or not really soon, but I'll keep everyone posted.
HAH
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