Cass R. Sunstein (Harvard Law School) has posted How Star Wars Illuminates Constitutional Law (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis – and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time.
Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes.
And from the paper:
Consider originalism in this light.29 We have seen that when he wrote A New Hope, Lucas had no idea about major plot developments in The Empire Strikes Back and Return of the Jedi. It would have been preposterous for him, and for his coauthors and (as of 2015) successors, to write further installments with reference to this question: What was Lucas’ original understanding? With respect to central issues in the series, there is no such understanding to consult, and with respect to others, it points in the wrong direction (as Lucas himself concluded). For constitutional law, the problem is immensely compounded because of the temporal lag between that understanding and current problems, and because of the rise of unanticipated circumstances of multiple kinds.30
In any particular period, constitutional law conveys an aura of inevitability, as if the prevailing narrative were planned or foreordained, or a product of some kind of Journal of the Whills. Assuming the role of Jedi, many originalists, evidently concerned to preserve the constitutional status quo, have worked exceedingly hard to demonstrate that wide swaths of current doctrine actually follow from the original understanding, even if that doctrine was established in the 1950s, the 1980s, the 2000s, or last year.31 Also self-portrayed Jedi, many nonoriginalists make similar claims, contending that they are speaking for the animating purposes of the provisions that they are interpreting,32 or spelling out the inner logic of those provisions.
Don’t believe them. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes.
