“I am struck, and not for the first time, by just how much constitutional law and the debates it produces represent an almost eternal cycle, an eternal movement of the pendulum back and forth between different modes of thinking about some of these issues.”

January 22nd, 2012

A very sharp post from Paul Horwitz about how there is nothing new under the sun.

The longer I am in this line of work, the more I think there is a kind of inevitable pattern to many scholars’ lifecycles in this area.  One starts with immediacy and certainty: one dives into the present debate, and does so more or less loyal to a particular position and aiming at definitive reform consistent with one’s views.  Some remain there for their whole careers.  But if you want to stick with these issues and deepen your understanding of them, you are eventually going to find yourself going further and further back–not to the Founding, necessarily, since (in my humble view) people who move between the Founding and the present with no stops in between or further back are going to make little real intellectual progress.  At a minimum, to understand Hosanna-Tabor or Citizens United at least, you will have to go a century back.  Whether you choose to go still further in time and place, to the reception of Roman law in Germany and Italy, is up to you.  However far you go, the shine will surely be taken off your sense of immediacy, as you realize that all this has happened before, in one form or another.  And it is little wonder too that, for many of us, the longer one does this, the less faith one places in either certainty, doctrinalism, or reform.  (To be sure, there will always be die-hard reformers who, oddly enough, insist on living in the present.)  It’s all very well to argue that corporations are persons or not persons.  But the longer one examines these issues, the clearer it is that these debates have all aired before, and that the stronger the position you push on one side, the likelier it is that the pendulum will eventually swing back in a fairly short period of time — say 50 or a hundred years.  As usual, Ecclesiastes has us all dead to rights: there is nothing new under the sun, and all is vanity.  Too much of this realization and you will cease being fun at parties.

One of my biggest weaknesses is my lack of history. I am quite up-to-date with the modern stuff, but the older stuff, my foundation is shaky. I will eventually have to come to grips with that.