Paul O. Carrese

Judicial Statesmanship, the Jurisprudence of Individualism, and Tocqueville's Common Law Spirit

Tocquevilles account of judging unites two concerns separated in recent debates over constitutional interpretation, use of discretion to serve the rule of law and respect for tradition. In Planned Parenthood v. Casey the majority upholding Roe is properly concerned with rule of law, while Justice Scalia properly criticizes departures from text and tradition. However, both evince a skepticism which undermines these concerns. This raises differences between American constitutionalism prior to Holmes and the rival strains of legal realism now dominant. Tocquevilles judicial statesmanship would perpetuate the Constitution by preserving the principles of its letter and spirit. Holmesean judges lack the classic common law basis of this jurisprudence and should not exercise discretion unguided by our founding principles. The jurisprudence of individualism yielded by activist Holmesean skepticism is inadequately opposed by Holmesean skeptical restraint and better addressed by a common law constitutionalism.

Constitutionalist Political Science: Rediscovering Storing’s Philosophical Moderation

In an era concerned with dysfunction in American politics, polarization, and the relevance of academia for ameliorating these problems, the fiftieth anniversary of a debate about American political science permits rediscovery of the philosophical balance and breadth of Herbert Storing. His constitutionalist political science embodied a broad conception of American principles that emphasized founding debates and their continuing echoes in policies and thought, as well as a post-Progressive appreciation for assessing ends and enduring truths of free government. Storing’s science anticipates, but contrasts favorably with, the narrower methodological pluralism of the recent Perestroika movement; it developed a philosophical moderation that analyzed alternatives and extremes in both ideas and politics but appreciated intellectual and political blending that sought higher middle grounds; and it focused on leadership or statesmanship in a way that addresses worries over dysfunction, a leadership crisis, and academic relevance more constructively than alternative models of American political science.