What Is a Postmodern Constitutionalism?
I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution – the federal judiciary and in particular the Supreme Court of the United States – appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would be clear that one of the most central features of the present period – if the expression “central” still has any remaining currency in an era of postmodernism – is a judiciary which has no intention of being new or innovative in anything. Its intellectual leader, Justice Scalia, has even called for a constitutional jurisprudence of tradition, coupled with a return to an interpretive theory of plain meanings for statutes and original intention with respect to the Constitution.