A Pitfall of Constitutional Analysis

Orin Kerr’s comment to my post from earlier today brings to mind this quote from Walter Bagehot:

“There is a great difficulty in the way of a writer who attempts to sketch a living Constitution–a Constitution that is in actual work and power.  The difficulty is that the object is in constant change.  An historical writer does not feel this difficulty:  he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also.  But a contemporary writer who tries to paint what is before him is puzzled and perplexed; what he sees is changing daily.”

Puzzled and perplexed indeed.

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1 Response

  1. Ken Rhodes says:

    Mr. Bagehot wrote “The difficulty is that the object is in constant change. An historical writer does not feel this difficulty…etc.”

    In a brief paragraph, Mr. Bagehot gives short shrift to both the scholars of history and the legal scholars and the courts of today. Even the hardest of the hard sciences, physics, is in constant flux. The historian can tell you with surety what Galileo wrote about planetary motion, but trying to figure out how the universe was thought to work at any moment in time is challenging. The reason we still have historians (scholars, that is, not simply pop writers) is that things were never so simple as we wish they were.

    And why would we need SCOTUS if “the Constitution worked in such a manner” at a given moment in time, where the moment could be chosen to be NOW? Once we know for sure “how the Constitution works,” we could simply agree to let it KEEP working that way for a while, and the nine elders could take a nice long vacation. But only in our dreams is the world so nice and simple that we can say we know how it works. Meanwhile, we have honest and true advocates on opposite sides of important issues, each making sound and well-supported arguments for their view, and we are left in doubt, wondering “how is the Constitution really supposed to work?”

    Our world is vastly complex, and it didn’t just get that way recently.