Summary of Contemporary Constitutional Lawmaking by Lief Carter
Uploaded by sandpiper1 on Oct 26, 2011
This paper summarizes the book by Lief Carter.
In this book, Lief Carter proposes a new way for readers to attempt to understand the Supreme Court and its rulings. He suggests we “abandon the familiar criteria of legal analysis and employ instead aesthetic criteria of good performances.” (P. 1). He bases this idea, at least in part, on the fact that most of us intuitively understand when we’ve seen a good performance. It’s that moment when the curtain falls or the lights go down and the audience sits for a moment in dead silence and then explodes in applause and cheers. When this happens, it’s because we’ve seen and participated in something extraordinary, something moving, something essentially and profoundly “good”. If we accept his suggestion, how do we approach the Court’s rulings from an aesthetic viewpoint?
Carter outlines his argument’s main themes thus: 1) He doesn’t “challenge the conclusions of modern linguistics, hermeneutics, and perceptual psychology.” (P. 9). He believes that people make and inhabit their own worlds; 2) he believes it possible to find goodness in public affairs; 3) he believes that it is the “task of a legal opinion to refine and intensify – to dramatize … the nature of our experiences.” (P. 9). He thus further believes that we can view court opinions as artistic works; 4) he argues that when justice is done well, it “creates a persuasive vision of a coherent world that in turn makes the case outcome plausible”; (P. 9) and 5) he believes that if it is possible to trace constitutional history and find patterns within it, those patterns are best understood aesthetically.
This is a radical departure from those who insist upon the study of the Constitution and Constitutional law from a strict legal perspective, and as such has left Carter’s work open to a great deal of criticism. But he traces his beliefs with skill and in such a convincing manner that it’s worth hearing what he has to say.
Before he begins, he makes a statement that must surely resonate with anyone who has watched as the “Supremes” crank out what often seem to be out-moded and ill-considered decisions. He says, “I believe the modern Supreme Court is woefully out of touch with the nature of its constitutional role and authority.” (P. 13). The Constitution is...