Progressive constitutional scholarship has yet fully to confront the implications of the conservative shift in constitutional law. Liberal critics continue to seek governing constitutional theories with which to constrain decisionmaking by judges of a notably different mind. Other, more radical scholars employ the indeterminacy and "law is politics" critiques in a more open attempt at displacement. Neither approach is viable, however. Each presumes the primacy of the autonomous, self-directing subject; each resists recognition of the situated nature of all human endeavor. This essay adopts the alternative strategy: exploring the implications of situatedness as they apply to the development, practice, and attempted reconstruction of modern constitutional law. After evaluating the lessons of history, the essay suggests a reconceptualization of "constitutional politics" which better reflects the parameters that both limit and enable change. It explores the possibilities for reconstruction through revisionist readings of three familiar cases--West Coast Hotel v. Parrish, Brown v. Board of Education, and Griswold v. Connecticut. These rereadings reveal not only that the recognition of situatedness and its constitutional implications are already apart of the canon, but also that they are the very center of modern constitutional concern.
Constitutional Law | Law | Supreme Court of the United States
Stephen L. Winter, Indeterminacy and Incommensurability in Constitutional Law, 78 Cal. L. Rev. 1441 (1990). doi: 10.2307/3480802