Constitutional Acceptance in a Polarized Era

*Associate Professor & Wolpow Family Faculty Scholar, The Wharton School of the University of Pennsylvania. I am grateful to Deborah Hellman, Leslie Kendrick, Micah Schwartzman, Lawrence Solum, Barbara Spellman, and the University of Virginia School of Law for organizing the gathering and conversation celebrating Fred Schauer.Show More

Introduction

Frederick Schauer left an indelible mark on my thinking and my life. One of the most special aspects of his work, to my mind, was his exploration of the nonconstitutional grounds of constitutional law. The idea of Fred’s that has captivated me more than any other is his concept of constitutional salience: “the often mysterious political, social, cultural, historical, psychological, rhetorical, and economic forces that influence which policy questions surface as constitutional issues and which do not.”¹ 1.Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafter Schauer, Boundaries of the First Amendment].Show More

Fred began his study of constitutional salience analyzing what he termed “First Amendment coverage.” He traced the boundaries of the First Amendment—that is, the line demarcating the social acts that constitute “speech” for constitutional purposes and those that do not. He observed that while the Constitution forbids abridgement of the “freedom of speech,” in practice, much, if not most, of what we might describe colloquially as “speech” is not covered by the First Amendment.² 2.Id. at 1769 (“The acts, behaviors, and restrictions not encompassed by the First Amendment at all—the events that remain wholly untouched by the First Amendment—are the ones that are simply not covered by the First Amendment.”).Show More From contracts to perjury and workplace harassment to the rules of evidence, governments at all levels regularly and pervasively regulate speech in ways that no one, lawyers and nonlawyers alike, identifies as a constitutional concern.³ 3.Id. at 1783–84; Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 320–21, 325 (2018).Show More The Constitution simply does not appear. It is not salient, Fred brilliantly pointed out. Fred later extended this idea of constitutional salience to explore the nonlegal and nonconstitutional bases of constitutionalism more broadly, including what makes a constitution valid and how constitutions change.

These inquiries are extremely relevant today. We are now in a tumultuous moment in U.S. constitutionalism where polarization and the rise of populist authoritarianism have made many once-well-settled constitutional principles seem up for grabs, including core ideas of both the freedom of speech and the separation of powers—if not the persistence of U.S. constitutionalism itself.

People often ask me what it is like to teach constitutional law now, when American constitutional law, culture, and norms seem to be rapidly changing. Teaching constitutional law, I have found, feels ever more important and pressing, including to students who in other times might have little interest. Trying to theorize both the fast shift in U.S. constitutional culture towards populist authoritarianism and what it means for U.S. constitutional law—let alone what, if anything, can or should be done about any of that—has proven far more vexing. These questions prompted me to turn, as I often do, to Fred’s work for insight.

This Essay offers a first sketch of how Fred’s theories on constitutional salience, validity, and change illuminate recent shifts in U.S. constitutional law and culture. In so doing, I tie together elements of Fred’s thinking that, to my knowledge, Fred had not, and I both elaborate on and challenge aspects of his thoughts. Fred’s ideas—re-situated and extended here—help shed light on some of the most vexing questions of our current moment and, as Fred’s work so often does, reveal new paths of inquiry.

1.  Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafter Schauer, Boundaries of the First Amendment]. ↑
2.  Id. at 1769 (“The acts, behaviors, and restrictions not encompassed by the First Amendment at all—the events that remain wholly untouched by the First Amendment—are the ones that are simply not covered by the First Amendment.”). ↑

3.  Id. at 1783–84; Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 320–21, 325 (2018). ↑