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Cass Sunstein on 'Star Wars' and Constitutional Law

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By Mark Wilson, Esq. on May 27, 2015 11:54 AM

Chief Justice John Roberts once famously criticized the irrelevancy of modern-day law review articles (even though he cites to them often in his opinions). Who cares about "the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something"?

There's one thing we can all agree on, though, and that's "Star Wars." Cass Sunstein, currently a professor at Harvard Law School, lived the dream: He wrote an article, to be published in an upcoming edition of Michigan Law Review, about how "Star Wars" informs constitutional law.

I Am Your Lawyer

The article comes from a review of the book "How 'Star Wars' Conquered the Universe," and discusses how narratives form a coherent pattern, whether the "narrative" is a book, a play, a movie -- or the law. (Welcome to literary and cultural criticism, where everything around you is a "text" to be interpreted.)

Actually, Sunstein's thesis makes sense: The narrative we know as "Star Wars" wasn't intentionally composed that way; it just sort of happened. "When Lucas began, he was not, in fact, writing about 'a father and a son, and twins,'" Sunstein observes. It took a long time, and several drafts of the script, before Lucas created something we might recognize as "Star Wars."

Indeed, the narrative changed from film to film. Sunstein points out that the idea that Luke and Leia were twins didn't occur to Lucas until the second or third film. This is why the sexual tension between them in the first film feels so yucky -- it was real then because they weren't supposed to be siblings when the first movie was made.

Worst. Episode. Ever.

What does this have to do with law? The overarching narrative of a film or novel is often created ex post; in fact, the creation of what turns out to be the narrative is usually an accident (note that we found out the creators of "Lost" didn't know how the show would end -- and his lack of planning was painfully clear). There's just as stark a lack of planning in constitutional law, which "has numerous authors, not only at a single moment in time, but also over long periods, and often with fundamentally different ideas (certainly about justification)." Is there an overarching narrative of American constitutional law? Can we say for certain that the jurisprudence we have today was the intentional creation of Madison and Hamilton?

Of course not. Sunstein is a noted critic of the "originalist" approach of constitutional interpretation, and his "Star Wars" article reaffirms that our current constitutional law didn't arrive in the year 2015 as the intended product of its 200-year-old authors any more than the "Star Wars" we know today sprang fully formed from the brains of George Lucas and Lawrence Kasdan.

Constitutional law, as much as the narrative in "Star Wars," evolves either as history or society requires. This evolution can take the law to unexpected places, and any constitutional law student knows that it can be incredibly frustrating to make different constitutional law principles "cohere" with each other. The fact is that these principles have been created by different people, at different points in history, and yet, we continue to labor under the fiction that they're all part of one coherent, unbroken chain of constitutional dogma handed down ex cathedra by the learned justices of the Supreme Court.

In case you weren't sure that this article was a swipe at originalism, Sunstein lets us all know: "Assuming the role of Jedi, many originalists, evidently concerned to preserve the constitutional status quo, have worked exceedingly hard to demonstrate that wide swaths of current doctrine actually follow from the original understanding," he says.

Like Yoda, however, he cautions, "Don't believe them. Whether Jedi or Sith, many authors of constitutional law are a lot like the author of Star Wars, disguising the essential nature of their own creative processes."

I wonder who he could be referring to?

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