(sent to conlawprof re: whether designing constitutions is a science)
Mark:
.. a couple brief remarks
1. If what you say is true -- that constitutional design gets better with age -- are you saying that the constitutions we have today would have worked better in the 1787 culture? Because I think that is quite clearly problematic, given what we should know about law fitting society. It also is terribly presentistic.
2. It seems to me that out of critical moments in culture come ideas and practices that come to be bellwether to subsequent ideas and practices, until critical moments emerge again. And so if we wanted to critique the California Constitution, we would ask how it fits schematically within the American program (how it stacks up to the fundamentals and development therein), and not assume that subsequent units are better than former ones. Even in automobiles that logic doesn't work (see the Toyota Celica in the 1990s).
3. I'm really confused about the science point. You borrow the language sets of science when you say: "law professor so-and-so has a hypothesis" and "we can test it empirically." I really think it would be more honest to say: X has an idea and we could get some journalism on that. The methods that you are (impliedly) referring to could never provide anything but journalism to the debate. Social science is not a real science, and that is not because its answers are probabilistic. It provides something in the nature of news, that's all. Really it is in best form when it is descriptive.
4. If constitutions are "science," why are not court decisions also? Remember the early 1900s and scientific management (in bureaucracy)? Administer with scientific rules instead of politics? Remember sociological jurisprudence? All of this came about in intellectual culture when scientific positivism was in vogue. I hardly think Warren and anti-Warren constitutionalism represent advancements in science, or that real science offers them any meaningful help.
5. I think debates about constitutions are ultimately are about philosophy and place in history. The minute you try to say no and study something, you have only hidden the philosophy somewhere. Noziek v. Rawls? Athens v. Rome? Hamilton v. Jefferson? America v. Europe? Constitutional v. Parliamentary? Locke v. Rousseau? Legal v. Hegemonic (written v. unwritten)?
In a way, what a constitution really is, is a form of life. Therefore, one could only ever say of California that they have an odd form of life and to offer comparison with neighboring forms for purposes of social learning. We would never say "study shows brand x is best." That is sort of the business that got us in the Iraq mess, wasn't it?
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
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