Our [Blank] Constitution

A recent article in The Nation by Brooke Allen, provocatively titled "Our Godless Constitution," recounts the substantial difference between the Founders of record and the pious Protestants evoked by the modern Right. There's nothing (forgive the term) revelatory in it, but these things need to be repeated occasionally. I was more interested in the title of the article than its content, though, and not due to its bluntness. The "Our [blank] Constitution" format falls into one of a few prolific patterns often used to produce titles for works of constitutional law or theory.

I read a lot of constitutional theory. It's part of my job, but it's also something I find interesting. Even an interested reader can find the sheer volume of constitutional theory exhausting, however. An article by Rebecca Brown from 1998 opened with the line "Honk, if you are tired of constitutional theory." I've searched online in vain for a bumper sticker with this slogan.

Brown argues that Alexander Bickel, the agitator of constitutional theorists for the past 40 years or so, started us down the unremittingly dull path of trying to reconcile judicial review and democracy with his book, The Least Dangerous Branch, and that theorists could improve the field by calling into question some of the premises of his book. Personally, I think it's more of a market problem. The vast majority of con theory is written by law professors, of which there are an astonishing number. The supply of law professors is connected at least loosely to the supply of law students, which continues to increase, increasing the need for law professors and providing an ever-renewing supply of editors for the unending proliferation of law reviews, which need articles. Many of those articles are constitutional theory, and many of that class eventually become books; it's a vicious cycle that makes reading a lot of con theory really necessary if one intends to keep up with developments.

Brown does have a point, though. Like it or not, constitutional theorists are not a very creative bunch. This can be seen most clearly in the titles of works in constitutional law and theory. Much like Robert Ludlum novels and early Steven Seagal movies, the titles constitutional theorists choose for their work fall into easily recognizable patterns, like "Our/The [adjective] Constitution":

- Monaghan, Our Perfect Constitution
- Graber, "Our Imperfect Constitution"
- Fleming, "Fidelity to Our Imperfect Constitution" (OK, there's a bit more to that one, but he's still playing with the same formula)
- Farber, "Our (Almost) Perfect Constitution" (because some people are just finicky)
- Seidman, Our Unsettled Constitution (and the parents are starting to wonder)
- McGinnis and Rappaport, Our Supermajoritarian Constitution (these authors played it safe - could be a complement, could be a dig)
- Cooter, The Strategic Constitution
- Fallon, The Dynamic Constitution (these last two make the constitution sound like a good head coach or CEO)
- Devins and Fisher, The Democratic Constitution
- Fletcher, Our Secret Constitution
- Koh, The National Security Constitution
- Karst, The Woman's Constitution
- Sunstein, The Partial Constitution
- Sager, "The Incorrigible Constitution"

and that's just the ones I could think of or gather from a quick look. The last one is my favorite. It makes the constitution sound like a really rotten kid or an inveterate womanizer, like "the bratty constitution," or "the rakish constitution." In fact, if legal scholars wanted to really freshen up this pattern, they should humanize the constitution with movie and TV touches:

- Our Curmudgeonly Constitution (I see James Garner in the lead)
- The Confident Constitution (ever since it started taking natural constitutional enhancement...)
- The Eligible Constitution (and turns out to be free this evening!)
- The Deliberate Constitution ("Excuse me miss, you need a lift?")
- Our Man Constitution ("You went to Moscow to watch ballet?" "No, to teach!")
- The Simple Constitution (read by Paris Hilton and Nicole Ritchie)
- Desperate Constitutions (scandalously dropping its towel)

Another, perhaps even more popular title pattern is "[The] Constitutional [noun]:"

- Bobbitt, Constitutional Fate
- Bobbitt, Constitutional Interpretation
- Whittington, Constitutional Interpretation (because one wasn't enough)
- Whittington, Constitutional Construction
- Antieau, Constitutional Construction
- Mueller, Constitutional Democracy
- Vose, Constitutional Change
- Bell, Constitutional Conflicts
- Johnson, Constitutional Privacy
- Stearns, Constitutional Process
- Lipkin, Constitutional Revolutions
- Tribe, Constitutional Choices
- Fisher, Constitutional Dialogues
- Rossiter, Constitutional Dictatorship
- Kennedy, Constitutional Failure
- Levninson, Constitutional Faith
- Post, Constitutional Domains
- Eisgruber, Constitutional Self-Government
- Glennon, Constitutional Diplomacy
- Hayman and Levit, The Constitutional Ghetto
- Gerstmann, The Constitutional Underclass
- Ely, On Constitutional Ground (the "On" is an innovation, and that's why Ely was a legend)
- Eskridge and Levinson, Constitutional Stupidities, Constitutional Tragedies (I guess each editor wanted a different term)
- Brown (yes, Rebecca), "Constitutional Tragedies" (a chapter in Eskridge and Levinson's volume)
- Karlan and Ortiz, "Constitutional Farce" (also a chapter in the above)
- Lowi, "Constitutional Merry-Go-Round" (another chapter in E&L, but with more amusement park references)
- Garvey, Constitutional Bricolage (another personal favorite)

Of course, I'm leaving out the 100 or so books called simply "Constitutional Law," typically hornbooks or case books. I'm pretty sure you could just slap a random noun behind "Constitutional" and get a bunch of perfectly acceptable titles:

- Constitutional Condiments
- Constitutional Rutabaga
- Constitutional Toast (I must be hungry)
- Constitutional Plumage
- Constitutional Pants (because pants is a funny word)
- Constitutional Smell (as in "What's that Constitutional Smell?")
- Constitutional Spleen (another funny word; I'm sure "Monkey" would work as well)
- Constitutional Secretion (OK, I must be getting desperate)
- Constitutional Housewives (sorry, free association)
- Constitutional Rattan (one of my favorite words)

Ronald Dworkin's work doesn't succumb to any of these cliches, although he has betrayed an enthusiasm for the possessive:

- Life's Dominion
- Freedom's Law
- Law's Empire (I'm sure Liberty's Order or Equality's Ambition is coming soon)

and he gave us the "Taking [blank] Seriously" motif with the late 70s publication of Taking Rights Seriously. There are several "Taking the Constitution Seriously" books and articles, and legal scholars are out there Taking All Sorts of Things (Deterrence, Federalism, Takings, etc.) Seriously. It's even prompted some comedic responses, like "Taking Text and Structure Really Seriously." This particular meme has also infected dozens of other areas, just try an Amazon search.

After Dworkin, and perhaps Ely, the latest major constitutional theorist is Bruce Ackerman, whose primary work is the We the People trilogy. So far, he's produced We the People: Foundations and WtP: Transformations with WtP: Interpretations promised. Ackerman acknowledges an antecedent, Forrest McDonald's We the People: The Economic Origins of the Constitution, but there are others, like Michael Perry's We the People: The Fourteenth Amendment and the Supreme Court and a bunch of textbooks and the like. I know James Fleming has already done a couple of variations, ("We the Exceptional American People" and "We the Unconventional American People") but both of them are Ackerman book reviews. It remains to be seen if we'll get a torrent of "We the [adjective] People" titles, but I'm sure that might be interesting too. With the recent success of On Bullshit, I'd suggest an enterprising (and tenured) law professor write something called "We the Ass-tastic People" or "We the Shitfaced People."