11 May 2005

Cycles in Constitutional Theory

A reference to a paper advocating 'humility' in constitutional theory scholarship might be a good start for a new Blog with the ambitious sounding aim of covering the field of 'comparative law and judicial decision making'. Professor Barry Friedman of NYU's School of Law has written a fascinating NYU Public Law and Legal Theory Working Paper on The Cycles of Constitutional Theory (notified through Bepress in April 2005 - paper dates from last year). The author asks whether the fact that "theoretical arguments tend to cycle as the ideological composition of institution changes" is an obstacle to full 'theory' status of constitutional scholarship. The dilemma confronting scholars is that shifting arguments look too much like advocacy, while consistency threatens irrelevance. Once aware of this problem, however, scholars can moderate its negative impact by demonstrating humility, "both about the empirical basis of their claims, and about what the future might bring".

Of particular interest to European readers is professor Friedman's concise exposition of the main developments in American constitutional thought over the past century. Books well known in Europe, such as Ely's Democracy and Distrust and Ackerman's We The People, are placed in ideological and broader political contexts that are perhaps not that easily ascertainable to foreign readers (they weren't to me, anyway).

One amusing point about the paper is the way it seems to prove its own argument rather well. Discussing cycles on the conservative/liberal axis, Professor Friedman argues that we are witnesses of a special historical moment because "for perhaps the first time in U.S. constitutional history, the cycle has come full circle in a poignant way". He adds "we have come full circle: the early 2000s are the early 1900s all over again, and one might as well forget that the Warren Court happened in the middle". Apparently, then, not only are works on constitutional theory influenced by their ideological settings, which they should be careful not to presume fixed (Friedman's point), but work on cycles in constitutional theory seems to be inspired (and influenced?) by, well, cycles.

"The Cycles of Constitutional Theory"
Barry Friedman, New York University School of Law
Document: Available from the SSRN Electronic Paper Collection:


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