Critical Constitutionalism Now

In the fall of 1999, Mark Tushnet published a celebrated foreword to the Supreme Court edition of the Harvard Law Review arguing that the Rehnquist Court’s decisions could be understood as part of an era marked by divided government and sharply reduced ambitions for the transformative potential of constitutional law.1 Almost exactly two years later, on September 11, 2001, airplanes crashed into the World Trade Center. For the next three or four years, Tushnet’s characterization of our times seemed exactly backward: We appeared to be in the middle of an era of united government and of quite dramatic constitutional transformation. More recently still, things may have shifted yet again. As I write, in early fall of 2006, there has emerged a fragile possibility of a Democratic resurgence coupled with constitutional retrenchment. I cite these facts not to criticize Tushnet, who has been my constant friend and mentor and sometimes co-author for over thirty years. The massive intelligence bureaucracy of the United States government could not predict the World Trade Center attack, so Tushnet can hardly be blamed for failing to foresee it and its aftermath. Instead, I cite them to support one of the great lessons that Tushnet has taught me. The lesson is that we are always in the middle of things and that meaning, therefore, always extends backward rather than forward across time. We embed meaning in texts and events retrospectively, and no actor can control (or at least completely control) the meaning that subsequent generations will give to her words and actions.2 Tushnet has famously made this point with regard to court precedent.3 The meaning of judicial decisions cannot be fully discerned at the time they are decided. Rather, they develop meaning over time as future judges use the cases—often in quite unexpected ways—for their purposes. If this view is correct, and I am persuaded that it is, then it should come as no surprise