Volume 7 Number 2 (February 1997), pp. 53-54.

CONSTITUTIONAL LAW AS FICTION: NARRATIVE IN THE RHETORIC OF AUTHORITY by L. H. LaRue (University Park: Penn State Press, 1995) 158 pages. $28.50 cloth, $13.95 paper.

Reviewed by John Brigham, University of Massachusetts, Amherst
 

L. H. LaRue was educated at Harvard Law School in the early 1960s and went to the Justice Department in 1965 to enforce civil rights. He teaches at Washington and Lee law school. One of his earlier books, Political Discourse: A Case Study of the Watergate Affair (1988) examined the uses to which language may be put in law and politics. His latest book emerges from these foundations and tells us how judges get us to accept their rulings about the meaning of the Constitution. LaRue dedicates the book to James Boyd White whose collection, The Legal Imagination, led many legal scholars to an interest in the language and rhetoric of law.

As the author, some time ago, of a book suggesting we look at the Constitution and constitutional competence from the perspective of language, I appreciate this book as laboring in neighboring soil. Throughout, LaRue's book shows how much stories matter. This is not the jurisprudence of doubt or of relativism. It is a jurisprudence addressed by Derrick Bell, Patricia Williams and Robert Cover in law and Tim O’Neill and William Harris in political science. LaRue illuminates a way of seeing law’s power to constitute our thinking and through that, our lives. Stories are not determinative in a formal but in a rhetorical sense that is at the heart of our politics. So, it is great to examine the work of an intellectual neighbor who cares about the worlds that law’s symbols create. But, as with any neighbor, I am a little rattled by boundary and noise issues and I see scholarly considerations worth addressing.

LaRue is an unpretentious author with a self-deprecating presentation that is somewhat disarming. He calls himself "a typically dull academic" and the book is packaged by Penn State Press in an exceedingly plain white wrapper. These deprecations ring a little false because the book is a lively account of the forms of persuasion in legal opinion. As a retelling of good stories and a challenge to conventional wisdom about fact and fiction, there is nothing plain in the offering. The author works hard to introduce, clarify and illuminate. The result is an engaging book that reads like the work of a great teacher.

The framework is elegant and certainly the result of years of discussion and refinement. The offerings in each chapter are really spectacular. LaRue tells us he is "not trying to bring narrative into jurisprudence" or "read fiction to bring insight into law," but rather to "critique the narratives that are already there" (p. 2). He begins with a useful overview of the context in which he writes. He develops the overview by attention to cases on establishment of religion. Turning to Marbury, he sees the great case in terms of stories about limits. A chapter on growth follows which looks at McCulloch and there is one about racial equality. The book concludes with a more general normative chapter. Each of these chapters brings new insight to legal forms examined endlessly and the forms benefit from this kind of attention because they are so central to our system of authority.

For religion, LaRue sees Justice Hugo Black telling a paradigmatic story in Everson v. Board of Education (1947). Black's story is that religion is a threat to peace and, according to LaRue, this story carries constitutional doctrine on establishment. Here, doctrine is associated with images and words rather than rules. For example, from his own delightful prose, LaRue writes, demurring from the picture of religious persecution, "One might note that few centuries have equaled our own in slaughter, and that our charnel houses have been run by secular murderers as well as pious ones" (p. 22). His attention to how Black's rhetorical foundations were subsequently used to resist creationism is itself aptly discursive and draws the reader into an important retelling of the story of law’s authority.

The story of "limits" is associated with Marbury v. Madison in this book and it seems more sophisticated than conventional treatments that have the Marshall opinion giving birth to the practice of judicial supremacy. For LaRue, "Marbury alone did not create the Supreme Court that we know today" (p. 42). The decision was simply "one of those extraordinary events that led the way toward ..." the unique state of affairs that is the modern Supreme Court (p. 43). A good deal of the sophistication in this work comes from the fact that this scholar does his own constitutional history. In a rich presentation of this important case, much of which was new to me, LaRue shows how Marshall limits politics by imposing a legal framework. Here he retells the story surrounding the undelivered appointments. He finds the case important because it is the story of the principle behind the Constitution as we employ it today, the principle that law is a constraint on politics.

One tension that interested me throughout the book was over the fiction/non-fiction dichotomy that LaRue is both drawn to and attempting to transcend. The issue, for me, was that "problems," like separating fiction from non-fiction, are sometimes beaten to a pulp. This makes things messier than they need to be. For instance, "fiction" is a key to this work and it is presented as about imagination rather than "fact." Early in his retelling of Marbury, LaRue offers an aside, "Is my story a fiction?" he asks, "Or is it based on the fact?" (p. 44). While he gives a fine account of the ways we come to accept fact and does not get mired in the epistemological swamp, neither does he move through it as gracefully as he might. The author appears to want to give fiction more status in jurisprudence without treading on "fact," but I don’t see how this can be done. On p. 125, for instance, LaRue says that "the best stories . . . are most nearly true" while much of what he presents suggests that the best stories are the ones that capture our imagination and hold sway over the way we think. The point of his enterprise seems to be to blur the boundaries so one wonders why fact is so prominent. Why not present the work as imagination v. experience with attention to the ways each inform the other?

Another concern I have is the relationship of this book to the other scholarship on narrative. LaRue situates himself in legal academic space. He acknowledges a mentor in White and indicates that he is aware of a narrative activity swirling around him. But the reader would benefit from a bit more attention to other examples of this activity. One need only look to two similarly titled volumes, Law's Stories, by Peter Brooks and Paul Gewirtz (Yale, 1996) and Law Stories, by Gary Bellow and Martha Minow (Michigan, 1996) to see that scholars are tumbling over one another in this field. In much of this work one gets a sense of narrativity as an academic and judicial practice. I think in advocating for the importance of stories or any other kind of scholarship, we establish our authority more legitimately when we take note of what our colleagues in the field are doing. Publishers tell us that footnotes get in the way of the stories, but this is one of the places where sales and markets should take a backseat to the niceties of scholarship.


Copyright 1997