Edward Rubin


Writing a treatise on constitutional law is both necessary and impossible. It is necessary because constitutional law, at least in the United States, is a common law subject. To be sure, it possesses a positive law basis, but that basis is very thin and the decisional law that has flowed from it is luxuriant and complex. Treatises organize and summarize bodies of decisional law, creating a coherent structure from the welter of incremental decisions, overlapping doctrines, and particularized holdings and dicta. Yet it is impossible to write a treatise about constitutional law. All treatises depend, for their effectiveness, upon a trick or, to put the matter only a bit more politely, a conceit. This conceit is that the mass of cases, decided by different courts at different periods of time reflect universal, timeless principles that underlie and animate the subject matter. One hundred years ago this conceit was a theory; indeed, it was a theory that identified itself as science, although it subsequently became known as formalism. No one believes in formalism anymore; we recognize that law is the creation of particular decisionmakers, whether legislative or judicial, that law changes over time, and that those changes tend to reflect the prevailing attitudes of the era that produces them. Virtually all political scientists and many legal scholars associated with the legal realist or critical legal studies movement believe that there is nothing other than these changing attitudes. Most legal scholars, however, agree that doctrine possesses some reality, that it constitutes a specialized body of knowledge that interacts with changing attitudes. Erwin Chemerinsky's Constitutional Law: Principles and Policies continues the necessary task of writing treatises on constitutional law. But it also comes surprisingly close to achieving the impossible. Chemerinsky adopts an intermediate position between formalism and legal realism; he treats constitutional law as something that changes in response to changing political conditions, but that nonetheless possesses a certain degree of conceptual coherence. Chemerinsky's view is that constitutional law is a loosely structured body of doctrine that flows from one shape to another, changing continuously but nonetheless preserving a certain degree of conceptual unity at any given time. But Chemerinsky does more than present a realistic political account; he almost succeeds in establishing the doctrinal integrity that is implicit in the enterprise of writing a legal treatise, as opposed to a political history, of constitutional law.