Article by John B. McArthur
Something has gone wrong in constitutional theory. The Supreme Court continues to write opinions that are ostensibly guided by the Constitution. Most lawyers and many professors continue to argue and to teach cases, as well as to write articles and casebooks, as if constitutional law should and does flow from the Constitution's text. In contrast, the most significant development in recent constitutional theory has been the spread of the belief that the Court no longer is or can be guided by the Constitution itself. This trend rejects the traditional doctrines that still regulate the day-to-day practice of lawyers.
This article considers the case for abandoning the constitutional text. The early sections compare Michael Perry's The Constitution, The Courts, and Human Rights with the very different theory presented in Phillip Bobbitt's Constitutional Fate. Perry epitomizes the new trend; he is at the forefront of those who believe that the Constitution no longer has much to do with constitutional law. In an effort to justify the policymaking he finds in the Court's opinions, Perry proposes that the Court be seen as an enforcer of emerging values. Perry's venture poses risks, however, because he is willing to sacrifice values traditionally associated with the Constitution. Perry's theory is a plea for the Court to become a political institution that will enforce his own preferred values. His gamble that his values will find wider acceptance than the Constitution's explains his breach of faith with those who remain loyal to constitutional values.
In order to put Perry's book in perspective, this article next surveys constitutional theorists' growing abandonment of interpretivism for noninterpretivism. The plausibility of this development is assessed through an examination of Bobbitt's Constitutional Fate. Bobbitt's principal goal is to build a constitutional theory by cataloging the methods we acknowledge as constitutional arguments. In the process, Bobbitt demonstrates that the noninterpretivists have failed to appreciate the variety and effectiveness of the techniques available to those who seek guidance from the constitutional text. Constitutional Fate thus provides an eloquent argument that the Court can still be bound by the text, albeit through a more sophisticated textualism than that envisioned by Perry or other noninterpretivists.
Once the tie between the Court and the Constitution is reestablished, the weakness in the noninterpretivists' position can readily be exposed. If interpretivism remains a viable possibility, then noninterpretivism is merely a political argument for the values noninterpretivists prefer to those in the Constitution. Noninterpretivists have not succeeded in their attempt to prove the irrelevance of the Constitution. The Constitution can be restored to the debate, even if it cannot rest unchallenged at the center of the judicial universe.
About the Author
John B. McArthur. Member, State Bar of Texas; B.A. 1975, Brown University; M.A. 1978, University of Connecticut; J.D. 1982, University of Texas.
Citation
59 Tul. L. Rev. 280 (1984)