Winter 2012

Narratives of the Constitutional Covenant

Author
Peter Brooks
Abstract

The constitutional narrative plays perhaps a surprisingly important role in American society. It claims to unfold present judgment from past precedent, according to the doctrine of stare decisis, given an eloquent exposition by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, where the Constitution is referred to as a “covenant” among generations. Analysis of this and other covenantal narratives spun by the Court suggests that despite the emphasis on precedent they may work according to the retrospective logic of narrative itself, in which elements become functional in terms of what follows them. Plots work from end to beginning, reinterpreting the past in terms of the present. The Supreme Court opinion, when subjected to an analysis sensitive to its narrative rhetoric, suggests something akin to the structure of prophecy and fulfillment in its composition of the covenantal narrative.

Peter Brooks, a Fellow of the American Academy since 1991, is the Andrew W. Mellon Foundation Scholar at Princeton University, where he teaches in the Department of Comparative Literature and the Center for Human Values. He was formerly the Sterling Professor of Comparative Literature at Yale University. His publications include Enigmas of Identity (2011), Henry James Goes to Paris (2007), Realist Vision (2005), and Troubling Confessions: Speaking Guilt in Law and Literature (2000).

Any society needs myths of origins to confer meaning–possibly sacrality–on itself. Such myths can be dangerous–they probably have been more noxious than beneficial over history–and need to be seen for what they are: constructed fictions, not revealed truths. They are narratives with etiological significance, “explaining” how we got to be the way we are. Among the many such narratives that Americans regularly call on, one of the most curious is the constitutional narrative–curious because it is not obvious why a society should need such explicitly, often technically legal narratives to make sense of itself. Yet since the U.S. Constitution in many ways takes the place of the texts held to be sacred in other societies, the need to find continuing meaning in the narratives spun from it may not be so surprising. Still, our reverence for and obedience to these narratives, even when they seem counterintuitive and socially unproductive, claims attention.

A notable recent phenomenon in constitutional jurisprudence has been the apparent upsurge of “originalism,” even among its opponents. A couple of decades ago, for instance, Justice William Brennan, dissenting in Michael H. v. Gerald D., declared .  .  .

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