Lawrence B. Solum (University of Illinois College of Law) has posted Narrative, Normativity, and Causation (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:
This essay examines the relationship between constitutional narratives, causation, and normativity in the context of Barry Friedman’s book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. In his book, Friedman provides a grand narrative of American constitutional history that emphasizes the role of public opinion in the development of American constitutional law. That narrative involves both implicit and explicit claims about the causal forces that shape constitutional doctrine and about normative constitutional theory. The aim of this essay is to identify those claims, excavate their theoretical assumptions, and to determine whether the narrative offered by Friedman vindicates these causal and normative claims, theories, and assumptions.
The Will of the People is what can be called a “causally committed historical narrative.” It makes implicit and explicit causal claims. These claims are problematic in three ways. First, historical narratives can suffer from a selection bias problem. For example the story of American constitutional law could be told in terms of the causal effects of considerations internal to legal doctrine or in terms of the effects of elite group opinion. On the surface, these stories might appear as plausible as the story that Friedman tells. Selective narratives cannot themselves establish causal claims. Second, The Will of the People implicitly relies on claims about counterfactuals. Friedman’s story assumes that if public opinion had been different at crucial junctions in the history of American constitutional law, the narrative would have been substantially altered. But narrative itself only establishes what actually happened; it does not provide direct evidence for counterfactual claims. Third, Friedman does not offer a systemic account of the mechanisms by which popular opinion might determine constitutional doctrine. The Will of the People does include a limited discussion of the political science literature on this question, but the sources that Friedman cites do not provide support for his assertions about causal mechanisms.
The Will of the People is “normatively charged”; Friedman makes both explicit and implicit normative claims. One of these claims concerns the relationship between constitutional law and democratic legitimacy, but Friedman does not offer a theory or account of democratic legitimacy to ground this claim and it is not clear whether he will be able to do so. A theory of democratic legitimacy might be grounded in either in a theory of democratic equality or a theory of deliberative democracy, but neither theory would justify the kind of influence that public opinion has on constitutional law in the narrative Friedman offers. Another normative claim in The Will of the People implicates the debate between living constitutionalists and originalists. Friedman’s narrative offers a delegitimating story about the development originalist constitutional theory, but the evidence offered by Friedman rests on an implausible interpretation of originalist writings.
Despite the difficulties with the causal and normative claims made in The Will of the People, there is much to admire in its grand and synthetic historical narrative. It offers the best historical account we have of the relationship between popular opinion and the constitutional decisions of the United States Supreme Court.