Bulletin n. 2/2010 | ||
October 2010 | ||
LaCroix Alison L. |
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Temporal Imperialism | ||
in University of Pennsylvania Law Review , Vol. 158, issue 5 , 2010 , 1329-1373 | ||
Unlike many modern constitutional democracies, the United States is still in its first republic. This means that the entity called “the United States of America," as created by the Constitution, can be said to exist in a continuous relationship from 1789 to the present day. Yet even to speak of the “first republic” seems odd: why use an ordinal number to denote the first and, so far, the only? But thinking of the American constitutional regime in this sense—as just one in a potential series of regimes—is useful because it calls into question one of the central assumptions of American constitutional law: the idea that the Republic of 2010 is in a fundamental sense continuous with that of 1789. This assumption is particularly evident in the Supreme Court’s case law, in which the Court regularly refers to the decisions of past decades or even centuries as “our” decisions, or in the custom of tracing particular seats on the Court back to their first occupants in the late-eighteenth or early-nineteenth century. The Court’s self-presentation and self-conception thus presume continuity. The Justices' rhetorical insistence that the Court is both a continuous and a unitary institution is striking, however, given the obvious changes in membership and doctrine that the Court as an institution has witnessed since its founding, as well as the relative rarity of per curiam decisions since the days of Chief Justice John Marshall. As an analytic matter, one might reasonably argue that no such entity as “the Court” exists; rather, the Supreme Court is a series of courts connected across a series of cases that exist along a series of moments in time. For the most part, however, the Justices’ decisions suppress this multiplicity and discontinuity in favor of a posture of unitariness and continuity. The composition of the Court thus changes over time, but the language of the decisions that issue from the Court presumes fixedness and permanence, presenting the Court as a single continuous entity with a single lifespan. | ||