Structure and the Making of Constitutional Studies

David W. Congdon, an editor in political science at the University of Kansas Press, posted an extended Twitter thread last Sunday evening suggesting that “the highly conservative character of the political science field” makes it comparable to the evangelical Christian authors he previously worked with. Congdon points to the recent data collected on the relative numbers of Democrats and Republicans in different disciplines at liberal arts colleges and draws upon Jessica Blatt’s book Race and the Making of Political Science to suggest that the relative conservatism of political science reflects the discipline’s origins in an attempt to keep politics under the control of a white male elite. Congdon’s discussion suggests that the turn to “Behavioralism” and “Empiricism” within the discipline of political science has not rectified that earlier inclination toward the maintenance of structures of racial and gendered power but rather replaced it with a “color-blind” approach that looks past, or minimizes, such structural forces in its focus upon individuals and their interactions with the State.

 

At first blush this critique might produce much head-nodding agreement amongst readers of a blog dedicated to history and theory as tools for understanding American politics. (Although neither field is free of work that underplays the role of structural forces in political life). But it also seems like a useful moment for reflection upon the nature of constitutional law as practiced in the United States and the dangers that this presents for scholars seeking to study it without replicating the “color-blind” approach discussed with regard to political science. For constitutional law operates upon just such an assumption of a color-blind approach to justice –Supreme Court opinions that many would welcome, such as Obergefell v. Hodges, have power precisely because they seek to secure rights through a wider recognition of “individual autonomy” without the coloring of past societal mores.[1]

 

But at the same time, the application of color-blind justice without reference to prevailing structures has produced decisions that many who identify as progressives would recoil from. The Roberts Court’s decisions in areas such as Education, Voting Rights, and Campaign Finance have stripped legislation of the context of the contemporary historical moment in the United States and applied standards of individualistic color-blind justice in ways that have not corrected but rather reaffirmed prevailing structures of power.

 

This presents a particular challenge to the constitutional scholar wanting to account for structures of power but who remains tied to a corpus of Supreme Court decisions that examine only the relations between individuals and the State. To be sure, efforts to counter this tendency exist in, amongst others, critical legal studies, historical accounts of popular constitutionalism, and Peoples histories of the Supreme Court. But in a final analysis, much of our work comes back to a set of court opinions that actively work to exclude discussion of structural forces and to distill political questions down to points of law arising within a liberal order. Given this, we would do well to pay attention to Congdon’s critique and think about the ways in which the endeavor of constitutional studies may itself replicate many of the issues that we so readily identify in American political science.

[1] Conversely some of the greatest outrages of American constitutional law, such as Dred Scott, are instances of not applying the law in a color-blind manner.

 

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