Brother, Can You Paradigm?

Constitutional Commentary, Vol. 23, No. 101, 2006

44 Pages Posted: 9 Mar 2006

See all articles by Brannon P. Denning

Brannon P. Denning

Samford University - Cumberland School of Law

Abstract

This review essay discusses Jed Rubenfeld's Revolution by Judiciary: The Structure of American Constitutional Law. Professor Rubenfeld's ambitious book posits that there is a deep structure to American constitutional law - a structure that, once understood, shows more harmony than cacophony in much of constitutional doctrine.

Rubenfeld argues that all constitutional text is derived from historic paradigm cases. The text reflects the Framers' understanding of the paradigm case and contains a foundational rule, which is invoked in Application Understandings employed by courts that reflect the irreducible minimum substantive content of the text's constitutional commitment. There may be other contemporaneous understandings as to what the text did or didn't permit or prohibit, but these are mere intentions that do not rise to the level of a commitment, and may form and be sloughed off by courts as the years go by. Rubenfeld calls these No Application Understandings.

Courts would do well, he argues, to ground their decisions explicitly in the paradigm cases. Rubenfeld argues that understanding the paradigm-case method can lead to the resolution of many so-called hard cases that plague American constitutional doctrine - everything from Brown v. Board of Education to Takings Clause cases. Recent cases on issues like gay rights and affirmative action would be more defensible, and less controversial, he argues, were the Court to adopt explicitly what he finds implicitly apparent in many of its enduring decisions.

The paradigm-case method, which Rubenfeld offers as an alternative to both originalism and non-originalist interpretive methods, is grounded in a complex normative argument summarized in Revolution by Judiciary, but first explained in detail in a his previous work, Freedom and Time. In brief, the paradigm case method is Rubenfeld's attempt to suit commitmentarianism for use by courts in deciding cases.

In commitmentarianism, a present-day political community is bound by commitments made in the past, because self-governance is a temporally extended process of making commitments and being bound by them after the committing generation has passed. The obligation to honor those commitments separates the paradigm case method from non-originalist modes of interpretation. But Rubenfeld's method is also different from originalism because it enforces only those special obligations that rise to the level of a constitutional commitment - the intentions of the framers count for nothing, because they cannot have foreseen what the commitments they made might ultimately entail. Thus Application Understandings bind over time, while No-Application Understandings come and go.

Ultimately, I find Rubenfeld's admirable attempt unconvincing - not because I find fault with commitmentarianism, but rather because his explanation of the paradigm-case method itself falls short. In too many crucial places, Rubenfeld has left too many questions unanswered.

Part I will summarize Rubenfeld's paradigm-case method. In Part II, I also briefly review his theory of commitmentarianism, laid out in detail in his prior work, and describe its connection to the paradigm case method. Part III outlines several objections to his interpretive method. First, he furnishes no criteria for correctly identifying and interpreting historic paradigm cases. Second, the process for constructing Application Understandings from these paradigm cases is obscure, neither instructing how to choose among plausible, contending Application Understandings nor explaining the rule that precedent should play in their construction or application. Finally, Rubenfeld offers little sense how the paradigm-case method operates to aid in the prospective resolution of constitutional cases. A brief conclusion follows in Part IV.

Keywords: constitutional theory, Rubenfeld, constitutional interpretation, commitmentarianism, Revolution by Judiciary, Freedom and Time, constitutional law

Suggested Citation

Denning, Brannon P., Brother, Can You Paradigm?. Available at SSRN: https://ssrn.com/abstract=888551

Brannon P. Denning (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

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