Evaluating Constitutional Narratives

What is the right moment at which to switch from faith to disbelief? This question was posed for me by Dan Solove’s post on “Losing Our Religion,” as well as by the juxtaposition between Jack’s book and Sandy Levinson’s Our Undemocratic Constitution, works that share many sympathies yet appear to reach opposite conclusions. In particular, I wonder whether the kind of faith involved is susceptible to reasons or involves a more existential decision to affirm or deny the possibility of redemption. Personally, I would prefer the former option, partly because of the role of elites in shaping constitutional narratives that Doug, Danielle, and others have discussed.

If we envision elites as particularly important in constructing constitutional narratives, or, as Danielle evocatively suggested, see “judges, politicians, and government officials” as “the high priests who owe a special responsibility to redeem the Constitution’s promises on the public’s behalf,” we might wonder what options individual members of the public possess, aside from simply endorsing or rejecting these narratives.

Here I think that some aspects of a law and literature approach might be helpful. As literary scholar Peter Brooks has contended in “Narrative Transactions–Does the Law Need a Narratology?,” literary methods may assist in understanding the role of narrative in law by inquiring “what narrative is, how it works, what its parts might be, and how they might go together–in short, the kind of questions that narratology would ask.” Employing these techniques for interpreting and even critiquing narratives may not only be useful for high-level decision-makers like judges but also prove valuable for the ordinary individual attempting to navigate narratives about the Constitution and constitutional meaning.

Literary methods would aid in considering not only the relation between a constitutional narrative and the history to which it refers–a relation that several contributions to this Symposium have touched upon–but also the structure of the narrative or even myth itself. Constitutional narratives, like other kinds of stories, partake of particular generic forms (as Balkin and Levinson diagnose in referring to tragic and comic alternatives [80-82]) as well as rhetorical techniques. By shifting focus to these methods of construction, it becomes possible to find mechanisms for evaluating the plausibility or lack thereof of particular narratives, mechanisms that the individual citizen may deploy even if he or she does not participate directly in the creation of a constitutional narrative.

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