Constitutional Bricolage

Constitutional Bricolage

GERALD GARVEY
Copyright Date: 1971
Pages: 176
https://www.jstor.org/stable/j.ctt13x1661
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  • Book Info
    Constitutional Bricolage
    Book Description:

    Uniquely blending anthropological and exchange theory, Professor Garvey offers a new interpretation of American constitutional development. His thesis: judicial reliance on a limited stock of received forms has inhibited the development of new concepts that could adequately reflect fundamental changes in society. Professor Garvey reviews the history of the Supreme Court in light of the "bricolage" theory. The Court, by interpreting the Constitution to effect laissez-faire and Social Darwinism, helped bring about a society ostensibly patterned on the buyer-seller model, marked by free exchange and "liberty of contract." New departures by the Court in the areas of free speech and criminal justice, according to the author, evidence a recognition of present inequities and a determination to change them; but to the extent the Court remains loyal to a buyer-seller model, it practices an unrealistic jurisprudence.

    Originally published in 1971.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6910-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. PREFACE
    (pp. xi-2)
  4. INTRODUCTION
    (pp. 3-8)

    Society may be viewed as a web of transactions through which values are distributed among individuals and groups. Repetitive social transactions generate regularized modes of behavior. Certain modes become dominant and form the characteristic features of a given society. The transaction between buyer and seller—generically considered—is usually thought to be modal for the United States and is reflected in the primacy of mercantile activities, in such legal values as sanctity of contract, and even in the use of marketplace analogies in the constitutional law of free speech. (The best test of an idea, Holmes argued, is its ability...

  5. CHAPTER I THE SYNTACTIC APPROACH AND THE PRIMACY OF FORM
    (pp. 9-25)

    The following sentences illustrate two patterns. There is a vertical orparadigmaticpattern, showing the correct inflections of words depending on tense, number, and so forth; and a horizontal orsyntacticpattern, following the rules governing combination of words to form correct sentences:

    The mouse will have eaten the cheese.

    Mice will have eaten the cheese.

    The mouse will eat the cheese.

    Mice will eat the cheese.

    The mouse has eaten the cheese.

    Mice have eaten the cheese.

    The mouse ate the cheese.

    Mice ate the cheese.

    Because culture reflects language, just as language mirrors culture, we might extend these...

  6. CHAPTER II THE LAW OF RULES
    (pp. 26-47)

    In 1899, Holmes asserted: “It is perfectly proper to regard and study the law simply as a great anthropological document . . . as an exercise in the morphology and transformation of human ideas.”¹ Such an approach requires more than transference to modern legal scholarship of illuminating perspectives from reports on savage, primitive, or otherwise exotic peoples. It requires treatment of law as an institution in terms of its social function among complementary institutions performing other functions, and all contributing to a more or less coherent whole.

    Even a preliminary attempt at such an essay presupposes: (1) a theory of...

  7. CHAPTER III THE FRAMERS’ POLITICAL SYNTAX
    (pp. 48-65)

    The aim of this chapter is to reconstruct the framers’ achievement in combining received doctrines and attitudes into the Constitution of 1787, which both reflected the early Americans’ political culture and served their national aspirations. This early resonance between culture and constitution is summarized in the notion of the framers’ “political syntax.” (Henceforth “Constitution” will be capitalized only when referring to the framers’ document; “constitution,” uncapitalized, will refer to the entire body of authoritative interpretations of the limits of public power—including, but not limited to, those of the Supreme Court and those explicitly imported by the words of the...

  8. CHAPTER IV THE LEGAL HUMOUR IN AMERICA
    (pp. 66-84)

    Alphevs T. Mason has written, “Symbolism pervades the judiciary and contributes to its practical effectiveness.”¹ To similar effect are the words of Chief Justice William Howard Taft: “It is well that judges should be clothed in robes, . . . in order to impress the judge himself with constant consciousness that he is a high priest in the temple of justice and is surrounded with obligations of a sacred character. . . .”² Such attitudes manifest a tendency toward legalism that might have been foreseen from the first. Almost half the signers of the Declaration of Independence were lawyers. More...

  9. CHAPTER V TANEY AND CONSTITUTIONAL BRICOLAGE
    (pp. 85-100)

    As was suggested in Chapter i, the judge is in the position of thebricoleurdescribed by Claude Levi-Strauss inThe Savage Mind—the position of a problem solver, usually one working on a project requiring special manual deftness because of the reduced scale of the operations involved. Thebricoleurplies his craft, as do most judges, not by light of theoretical science but by a combination of intuition, experimentation, and acquired skill, and always within a received tradition, always making do with whatever tools and materials are on hand.

    The constitutional document, together with the authoritative glosses on it,...

  10. CHAPTER VI HELPING THE FITTEST SURVIVE
    (pp. 101-121)

    The Civil War’s aftermath brought rich opportunities for material prosperity—opportunities, at least, for those with the vision, cunning, and strength to seize them. Improved technology, some of it produced by the war itself, opened new fields. There were the telegraph and the reaper, and prospects for economies of production through more efficient Kelly-Bessemer steel processing. The railroad’s potential fired the entrepreneurial imagination. Populations moving West, plus the immigrant swell filling city rolls back East, stimulated growth. In 1865, the economy was waiting to catch up on deferred consumer spending, on plant retooling and expansion. The desire for post-war “normalcy”...

  11. CHAPTER VII THE LIBERATION OF THE STATE
    (pp. 122-139)

    The era from Melville Fuller’s accession to the chief justiceship in 1888 till the New Deal saw two contradictory lines of precedent. One line of decisions, reflecting traditional American values of “rugged individualism” and freedom from restraint, had a laissez-faire orientation. The second line responded to the functional needs of an industrial society, and justified increasing government involvement in its citizens' affairs. This tension between value and function, and its eventual resolution in a new constitutional jurisprudence, are the subjects of the present chapter.

    Large-scale industry which developed under laissez-faire raised anew the American “problem of bigness.” Distrust of bigness,...

  12. CHAPTER VIII TOWARD A NEW POLITICAL SYNTAX: BEYOND BRICOLAGE
    (pp. 140-156)

    The framers’ anti-statist political culture required that power be limited or, where not limited, at least made private and screened from view. Using forms associated with the buyer-seller mode, the framers and their successors occluded essential power relationships. For while the ruler-subject transaction assumes inequality of the actors, the buyer-seller relation postulates—even where it does not achieve—open results freely arrived at through rational decision-making by at least putative equals.

    In 1937 the Supreme Court stopped functioning as a political magic wand, propagating the illusion of nonexistence of power. The service state liberates public power to serve positive, constructive...

  13. INDEX
    (pp. 157-160)