How is Constitutional Law Made?

Authors

Tracey E. George, Northwestern University School of Law
Robert J. Pushaw Jr., University of Missouri School of Law

Abstract

Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production. Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4). Viewed through the lens of social choice, the Court's constitutional precedent becomes more coherent. Stearns aims to present an account that is "positive" (i.e., justifies the Court's rules based upon the historical and case evidence) rather than "normative" (i.e., criticizes the substantive content of those rules) (pp. 6, 63-67). In particular, Stearns logically explains the decisions involving "standing" (i.e., whether a plaintiff has the right to sue), which legal scholars have uniformly concluded are irreconcilable and thus reflect either intellectual sloppiness or unstated political motives. Professor Stearns's thesis is radical, for it compels us to look at constitutional law in an entirely new way. At the same time, however, his approach is conservative because it depends on the pre-Realist premise that constitutional "law" consists of binding legal rules that the justices try to interpret and apply in a principled way. Unlike many academics, Stearns "takes the justices' own statements of doctrine, as expressed in their opinions, quite seriously" (p. 5) and attempts to justify them using social choice analysis.2 Stearns displays a unique ability to convey extremely complex legal, economic, and political ideas in a clear and precise manner. His work is especially valuable because it is accessible to scholars in a variety of fields, and it will. force them to reconsider their analytical frameworks. Perhaps the greatest strength of Stearns's book is that he presents a grand unified theory of the Court's rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, however, because he tends to read precedent and the historical evidence to fit his thesis, even when other explanations might be more persuasive. In this Review, we will explore two such alternatives, grounded in political science and constitutional theory. We hope to show that these disciplines are at least as effective as economics in illuminating constitutional lawmaking.

Recommended Citation

Tracey E. George & Robert J. Pushaw Jr., How is Constitutional Law Made?, 100 Mich. L. Rev. 1265 (2002).
Available at: https://repository.law.umich.edu/mlr/vol100/iss6/5