Why Lord Bolingbroke is more interesting than OJ.

If I ever get to nominate the father of Anglo American constitutionalism, I will nominate Lord Bolingbroke (Henry St John, 1st Viscount Bolingbroke). Bolingbroke was the person who invented that particular discourse of constitutionalist opposition which really, more than anything else I believe, defines and identifies the presence Anglo-American constitutionalism. That is the discourse that couches arguments for constitutional reform and revision in historicist terms, creating the discursive illusion of moving backward when in fact moving forward.

Resorts to this technique are so ubiquitous in American constitutional law that I’m hoping that I do not have to belabor the point. But it is also definingly present in English constitutional history, be it that of the conservative constitutionalism of Bolingbroke during the Walpole era; the radical constitutionalism of the late 18th century; or the counter-reformation constitutionalism of Dicey. Interestingly, the two most prominent English constitutional theorists who refused to endorse this historicist approach, Bentham and Paine, are today mere footnotes in English present-day constitutional law (but see Dicey’s Law and Opinion in England on Bentham).

(We might also note that the same rhetorical technique is frequently found outside the Anglo American system as well: i.e., people seeking to reproach or change an existing constitutional system by portraying that change of reproach as a call to return to some historically defined constitutional purity. It is notable, for example, that despite the civilian distaste for precedent, the Conseil d'├ętat uses a precedent-based form of legal argument to keep the government in check. Perhaps a better example of the universality of this kind of trope can be found in the work of Confucius, who frequently invoked the principled practices of a more esteemed time to reprimand contemporary kings.)

But there is one interesting different between American and English uses of this trope, at least historically. Both American constitutional history and English constitutional history can be seen as being ‘two-tiered’, to use Ackerman’s famous phrase. And at a superficial glance, one of the things that seems characteristic of American higher-tier constitution making, at least post 1787, is the relative absence of this kind of trope. In England, at least up to the end of the 19th century, it was exactly the opposite – constitutional moments were characterized by the distinctive presence of this trope, compared to times of more normal constitutional lawmaking. Why this is, I don’t know. But I suspect that it has to do with the written quality of the American constitution. Bolingbrokian™ appeals to historicist authority were quite common in America during the period of constitutional agitation leading up to the Revolutionary War.

The upshot? Maybe it’s that a constitutional moment is not simply characterized by a mobilized discourse, but by distinctive forms of mobilized discourse, whose term of reference and authority are different from those that normally operate in constitutional politics. It may be in the emergence of this different discourse, and not some symbolic actions of a constitutional elite (as read Ackerman to suggest), that the signaling of the onset of a constitutional moment takes place.