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Constitutional Bricolage

Constitutional Bricolage

by Gerald Garvey


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Uniquely blending anthropological and exchange theory, Professor Garvey offers a new interpretation of American constitutional development. His thesis: judicial reliance on a limited stock of received forms has inhibited the development of new concepts that could adequately reflect fundamental changes in society. Professor Garvey reviews the history of the Supreme Court in light of the "bricolage" theory. The Court, by interpreting the Constitution to effect laissez-faire and Social Darwinism, helped bring about a society ostensibly patterned on the buyer-seller model, marked by free exchange and "liberty of contract." New departures by the Court in the areas of free speech and criminal justice, according to the author, evidence a recognition of present inequities and a determination to change them; but to the extent the Court remains loyal to a buyer-seller model, it practices an unrealistic jurisprudence.

Originally published in 1971.

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Product Details

ISBN-13: 9780691620442
Publisher: Princeton University Press
Publication date: 03/08/2015
Series: Princeton Legacy Library , #1472
Pages: 174
Product dimensions: 6.00(w) x 9.10(h) x 1.60(d)

Read an Excerpt

Constitutional Bricolage

By Gerald Garvey


Copyright © 1971 Princeton University Press
All rights reserved.
ISBN: 978-0-691-07539-6



The following sentences illustrate two patterns. There is a vertical or paradigmatic pattern, showing the correct inflections of words depending on tense, number, and so forth; and a horizontal or syntactic pattern, following the rules governing combination of words to form correct sentences:

The mouse will have eaten the cheese.
Mice will have eaten the cheese.

The mouse will eat the cheese.
Mice will eat the cheese.

The mouse has eaten the cheese.
Mice have eaten the cheese.

The mouse ate the cheese.
Mice ate the cheese.

Because culture reflects language, just as language mirrors culture, we might extend these patterns to a particular aspect of U. S. political culture, public law. American constitutional development could then be viewed as having both paradigmatic and syntactic aspects.

[ 1 ] The Syntactic Approach Goes beyond Case Law, Emphasizing Interactions between, and Integration of, Law and Political Culture

Scholars of the American Constitution have traditionally stressed the paradigmatic aspects of their subject. The pedagogy of constitutional law is characteristically organized around substantive areas: Commerce, Due Process, or Freedom of Speech, Press, and Religion. The central doctrines in each area change over time, just as the verb in a sentence inflects as it moves through the tenses. Analysis of these changes, based on study of Supreme Court opinions, yields historical paradigms. Such paradigms are by the conventional view the objects of constitutional inquiry.

Let us consider for a moment the chief limitation of the paradigmatic approach. Case law incompletely, and hence inaccurately, represents the grounding of constitutional law in the political culture of which law is an integral and integrated part.

The limits of the American Constitution are not necessarily, and surely not exclusively, determined by specific case decisions. Lagging progress in school integration, for example, long after the Supreme Court's 1954 decree that desegregation was to proceed with "all deliberate speed," suggests that one must look far beyond the decisions to learn what behavioral rules really bind individuals. Similar records of lagging compliance are to be found in the areas of school prayer and criminal procedure.

Case law is not only frequently ineffective. It is often silent, even with respect to matters of fundamental public import. Many issues are "constitutional" in that they pose questions of the legitimacy of certain exercises of public power, yet do not lend themselves to litigation as justiciable conflicts. Such issues — so-called "political questions" are salient examples — fail what Justice Robert Jackson has characterized as "perhaps the most significant and least comprehended limitation upon the judicial power." Sometimes, too, cases which would otherwise be justiciable are never pressed in court, either for lack of money or for fear that the decision will set an unfavorable precedent.

There frequently results a time-lapse between a legislative or executive exertion of power — the first actual influencing of behavior — and judicial decision in a case testing the legality of the act. That the courts are thus sometimes silent can hardly mean that the Constitution itself is in some sort of suspension pending judicial utterance. On the contrary, the sources of law lie not in cases, but in society's values and functional needs, embodied in its political culture. Judicial decisions themselves gain force from the fact that they mirror underlying cultural norms. These norms continue to manifest themselves under various forms. Hence they continue authoritatively to influence behavior, even in the absence of or sometimes in spite of judicial decisions.

Let us consider, therefore, an alternative to the paradigmatic approach, one better calculated to point up the relationship between law and culture. Syntactic analysis may be thought of as a "horizontal" study of the way various substantive areas fit together at a given time, like words in a sentence, to form a meaningful whole.

"Law," "culture," and "society," together with any sub-elements of these broad categories, impose restrictions on one another just as a plural noun for the subject of a sentence restricts, by the rules of syntax, the form that the verb may take. If the values actually served by law are widely inconsistent with cultural norms, either the law will fall into disrespect (as under Prohibition), or the culture will be forced at enormous pains into new patterns of value, attitude, and belief (as in Japan under the American occupation after World War II). Or else both law and culture will be in for hard mutual adjustment (as in the South, faced with integration).

Like Versailles mirrors, law, culture, and society reflect one another. Yet they reflect one another obliquely: never on a one-to-one basis, and rarely completely or perfectly. How perfect a reflection is possible — or desirable? How imperfect a reflection is tolerable? The syntactic approach provokes such questions. When considering the subject syntactically, we are cued to problems which result when one paradigm or line of constitutional development moves at a different pace or in a different direction from a second paradigm with which the first must articulate. Just as in the "mouse ate the cheese" example, syntax shifts with paradigm. Nouns must inflect along with the verbs. What society is must be consistent with what it tries to do.

[ 2 ]

Political Culture Expresses Itself Through Various Forms, One of which Is Law; This Reflection of a Deeper Unity Gives Coherence and Continuity to Constitutional Interpretation

The syntactic approach emphasizes form — specifically, the forms in which the various aspects of a coherent culture reflect themselves in one another. The syntactic approach furnishes a principle of continuity in U.S. constitutional interpretation, one transcending the apparent discontinuities in the historical paradigms occasioned by reversals in substantive doctrine. Such discontinuities are accounted for syntactically as attempts to restore coherence in the political culture by bringing various areas of substantive doctrine into harmony with one another through judicial decision, after earlier shifts in society's values or needs have triggered an adjustment in some aspect of the pre-existing social syntax. Discontinuities are modifications of one or more paradigms to achieve syntax.

There can be no better example or harder test of this thesis than the apparent discontinuity dividing constitutional history into the two eras, before and after 1937. A contemporary observer might have thought that the Supreme Court's about-face in 1937, sustaining the New Deal in defiance of the case-law precedents, would have laid to rest controversy over alleged special access by judges to special knowledge. "Courts are mere instruments of the law and can will nothing," Marshall had written in 1824. Yet the reversals of 1937 demonstrated that judges are political actors sensitive to political pressures, not impassive oracles of an inner harmony and higher majesty — The Law.

A new Court carried on. But so, to an amazing extent, did the old fiction. More than twenty years after the New Deal shifts, Learned Hand observed that judges, when voiding legislation, "do not, indeed may not say that, taking all things into consideration, the legislators solution is too strong for the judicial stomach. On the contrary, they wrap their veto in a protective veil of adjectives such as 'arbitrary,' 'artificial/ 'normal/ 'reasonable/ 'inherent/ 'fundamental/ or 'essential/ whose office usually, though quite innocently, is to disguise what they are doing and impute it to a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision." Hand's words underscore the primacy of form in constitutional adjudication.

To give yet another example, in 1936 Justice Owen Roberts published his famed essay in judicial obscurantism:

When an act of Congress is appropriately challenged [the Supreme Court] has only one duty — to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. ... This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.

Two decades later, in an opinion for the Court, Chief Justice Warren returned to the same, and some had thought discredited, measuring-rod theory, arguing that constitutional interpretation "requires the exercise of judgment, not the reliance on personal preferences. Courts must not consider the wisdom of statutes but neither can they sanction as being merely unwise that which the Constitution forbids."

Judicial obscurantism — as a positive technique of, rather than merely an exasperating limitation on, the jurist's art — was not simply a by-product of dominant Court views in the pre-1937 era. The tendency to screen motivations with protestations of a higher compelling objectivity seems inherent in the judicial process. In this tendency we find the sought-for continuity, an otherwise absent consistency to Court history, which links by a common factor — fealty to the "right" forms — the periods before and after 1937, despite reversals in substantive doctrine. This book presents an interpretation of Supreme Court history, stressing three related aspects of judicial form, which broadly correspond to the validation, generation, and significance of form as elements of the political culture underlying court decisions.

[ 3 ]

Form Both Limits Judicial Freedom and Legitimizes Decisions by Prescribing The Terms in which Decisions Must Be Cast and the Process Used to Reach Them

There exist definite forms in which Court decisions are, and perhaps must be, cast if they are to be received as valid resolutions of disputes. Judges, by the nature of their institution and calling as well as by the proclivities of the "legal mind," work within an inherited tradition. This tradition both draws strength from and itself reinforces the primacy of form in adjudication.

The judicial tradition is keyed to achieve continuity, as indeed is any tradition. A main way of achieving continuity is to develop standard forms into which behavior (including verbal behavior) must be fitted. The very fact that they are standard tends to make the use of such forms recurrent. Their recurrence helps validate them as traditional, as acceptable, as "the right way." Therefore, a court functions more effectively and easily if its rulings — regardless of their substantive purport, regardless of the logical or psychological processes employed in reaching them — are presented in the form of a more or less skillful combination and permutation of the received standard elements. Form, so used, may of course control the substance of decisions, even to the point of making the court "dysfunctional" in its impact on society. This possibility will be dealt with at length in the following pages.

Judicial reliance on received forms — the talismans of the law — is suggested in the term "constitutional bricolage." This term follows the French word (introduced into social science literature by Claude Levi-Strauss) for a do-it-yourself handyman who must solve problems using only a limited, previously provided resource of tools and a developed flair for putting these resources to unanticipated, often difficult uses.

Consider a recent instance of constitutional bricolage. The Supreme Court's tendency to rely on received forms goes far to explain the rise (from 1920 till about 1945) and decline (1945 to 1950) of "clear and present danger" as a test of government action touching speech. Edward S. Corwin has shown that Holmes and Brandeis, in a string of dissents during the 1920's developed this test from a felicitous phrase first penned by Holmes apparently without awareness of its potentiality to be used as anything more than a felicitous phrase. Form became substance.

The idea itself derived, ironically enough, not from the law of civil liberties but from an earlier Holmes opinion in a labor case, Gompers v. Buck Stove, sustaining punishment for leaders of a secondary boycott on the ground that their action illegally burdened interstate commerce. Interpretation of the First Amendment's free-speech guarantee has proceeded almost as a running gloss on "clear and present danger" — from the Holmes-Brandeis development of a constitutional catchword, through its invocation, sometimes uncritically, to support libertarian holdings in the late 1930's and early 1940's, to its eclipse by Learned Hand's "clear and probable danger" test in the Dennis case (1951). But even here, continuity of form was paramount. The Supreme Court accepted Hand's phrase not as a new rule, but as a more precise statement of the original Holmes formulation. The requirement to maintain accepted forms by couching pronouncements, to the extent feasible, in terms having prior lodgement in the constitutional tradition generalizes, in a psychological sense, the logical requirement of consistency with precedent. In constitutional bricolage we find a basic source of stability and continuity in American public law.

Decisions, to be valid, must be reached by procedures correct in form as well as explicated in the accepted, authoritative idiom. Indeed, the centrality of process in American jurisprudence, with its emphasis on fair and complete procedures to safeguard all parties' rights, reflects and articulates with other aspects of U.S. society. It well illustrates the syntactic principle.

The high value placed on procedural regularity reflects a society marked by substantial diversity of interests, but one in which an acculturated sense of fair play requires that all parties interested in a controversy have a role in determining its outcome. Procedure is thus designed to insure access to decision-making and a fair hearing all round. But the right to be heard is not a guarantee that one will be listened to, and substance may be the casualty of form. So does it work in practice. In administrative law, for example, provision for intervention in cases even by parties with remote interests in a dispute has contributed to a backlog in U.S. regulatory agencies neither less shocking nor more conducive to smooth government than the backlogs on criminal court dockets — this in a system where "justice delayed is justice denied."

The idea of criminal justice as a special branch of law proceeds from, and implements, the thesis that the public itself must be represented in the process that will be used to make good the damage done in an alleged crime. Some basic advances in Anglo-American law illustrate this theme: the elimination of "outlawry," for instance, and the prohibition of conflict settlement by duel or vendetta. Such practices left resolution of disputes to private action, often by means and with results invidious to the public weal. Criminal law asserts that the public is always interested in any matter defined as "criminal." Indeed, nothing less than the existence of a public concern provides the ground for defining a given act as a crime.

American courts work not by haruspication, divine intervention, or shamanism. Decisions resolving conflicts issue not from "trial by ordeal" but from publicly ascertainable, reproducible, and reviewable procedures for presentation and weighing of evidence. Power rationalized is not always power legitimized, but power to be legitimized should be rationalized — that is, exerted only under general legal rubrics prescribing the circumstances under which sanctions for prohibited behavior may be applied. In few respects does American law more clearly or thoroughly reflect the American political culture than in this strain toward rationalization.

Finally, procedure is emphasized because fairness, in and of itself, stands high among American values. The importance of "fair play" in the Anglo-American heritage tends to tip the legal system in favor of procedure — the forms that must be observed in reaching decisions — over substance. Nor is it a coincidence that America's professional mechanics of procedure, lawyers, reserve their most eloquent raptures for celebrations of process. Justice Robert Jackson once wrote:

Only the untaught layman or the charlatan lawyer can answer that procedures matter not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices.


Excerpted from Constitutional Bricolage by Gerald Garvey. Copyright © 1971 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

  • Frontmatter, pg. i
  • Contents, pg. vii
  • Preface, pg. xi
  • Introduction, pg. 1
  • I. The Syntactic Approach and the Primacy of Form, pg. 9
  • II. The Law of Rules, pg. 26
  • III. The Framers' Political Syntax, pg. 48
  • IV. The Legal Humour in America, pg. 66
  • V. Taney and Constitutional Bricolage, pg. 85
  • VI. Helping the Fittest Survive, pg. 101
  • VII. The Liberation of the State, pg. 122
  • VIII. Toward a New Political Syntax: Beyond Bricolage, pg. 140
  • Index, pg. 157

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