Condorcet and the Constitution: A Response to the Law of Other States

Abstract:     
In a recent issue of the Stanford Law Review, Eric Posner and Cass Sunstein offered a new argument for reliance on foreign law in interpreting the U.S. Constitution. They contended that the Condorcet Jury Theorem supports the practice, because it demonstrates that, under certain circumstances, the majority view of foreign governments is very likely to be correct. This invited Response concludes that, neat as it is, the Posner-Sunstein argument puts the cart before the horse. Their article begins with the Condorcet Jury Theorem, which it presents in an entirely ahistorical way. Only afterwards does it turn, briefly, to the U.S. Constitution. This Response demonstrates how one might approach the same question from a more traditional starting point - constitutional text, history, and structure. As it turns out, Condorcet and his Jury Theorem do have a proper role to play in this discussion, but it is quite different from the one that Posner and Sunstein suggest. While there are, in fact, intriguing historical connections between Condorcet and the Framers, the Constitution that the Framers ultimately wrote demonstrates a conception of governmental structure sharply different from that of Condorcet. In short, Condorcet's ideas can usefully inform constitutional interpretation — but primarily by way of contrast. It turns out that Condorcet's vision of law and politics was distinctly universalist, imagining all people everywhere seeking the correct answer to questions of law and policy. This universalist vision is central to the Jury Theorem, the most basic condition of which is that each juror answer the same question. And it is also essential to the Posner-Sunstein application of the Theorem, which posits that questions of law will often be relevantly similar from country to country. But the Framers' vision, as reflected in many of the Constitution's textual and structural features, was distinctly more localist. As careful analysis of features like bicameralism, federalism, juries, and the amendment mechanism demonstrate, the Constitution favors decision-making mechanisms that harness multiple collective bodies with distinctly varied geographic and institutional perspectives, each answering subtly different questions. In short, despite Condorcet, the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states.

Accepted Paper Series