Who knew that George Lucas and constitutional law had so much in common?

Evidently Cass R. Sunstein did. The Harvard Law School constitutional scholar and former administrator of the Office of Information and Regulatory Affairs for President Obama makes such an argument in his forthcoming Michigan Law Review article titled How Star Wars Illuminates Constitutional Law. (PDF)

The paper's abstract (and, trust us, this paper is abstract) sums up Sunstein's thinking on the topic:

"Human beings often see coherence and planned design when neither exists. This is so in movies, literature, history, economics, and psychoanalysis—and constitutional law. Contrary to the repeated claims of George Lucas, its principal author, the Star Wars series was hardly planned in advance; it involved a great deal of improvisation and surprise, even to Lucas himself. Serendipity and happenstance, sometimes in the forms of eruptions of new thinking, play a pervasive and overlooked role in the creative imagination, certainly in single-authored works, and even more in multi-authored ones extending over time.

Serendipity imposes serious demands on the search for coherence in art, literature, history, and law. That search leads many people (including Lucas) to misdescribe the nature of their own creativity and authorship. The misdescription appears to respond to a serious human need for sense-making and pattern-finding, but it is a significant obstacle to understanding and critical reflection. 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."

The paper seems to rest on the "I am your father" moment in The Empire Strikes Back. That's when Darth Vader (imagine James Earl Jones' voice) tells Luke Skywalker: "No. I am your father."

Of these various points, the most important by far, and the one that can be taken to stand for the whole, is that Lucas decided only at a relatively late stage that Darth Vader is Luke’s father. The "I am your father" moment—which will play a large role in this review, and which has analogues in many fields, including law—is one in which Lucas took Star Wars on a fresh narrative path, one that fit well (enough) with what had gone before, but that cast an entirely new light on it, and that was essentially unanticipated by Lucas himself.

So how does this mesh with constitutional law? Sunstein essentially says that, like Lucas, the law changes course with the times or by happenstance, whether we want to admit it or not.

A movie or a novel is bounded in the sense that it has an ending. (We may hope that this is not true for the Star War series, but still.) Law is not similarly bounded in time. One implication is that in law, new and unanticipated circumstances and problems will inevitably arise, making it especially difficult or perhaps even impossible to ensure coherence. (Consider the rise of the telephone and the Internet, the increase in national markets, the changing role of women, new norms with respect to sexual orientation.)

Sunstein gives an example of a 1976 Supreme Court decision about commercial advertising.

Consider the issue of freedom of speech. For many people, including many lawyers, contemporary First Amendment doctrine is understood as if it emerged from some kind of Journal of the Whills—as if it has been spooled out of something (such as the original understanding of the text, or the basic commitments of James Madison). There are many domains in which that understanding can be shown to be false; perhaps the most obvious is commercial advertising. Until 1976, the Supreme Court had never ruled that the First Amendment protects such advertising. In its own “I am your father” moment, the Court decided that indeed it did, in an opinion that claimed continuity with a tradition that it was fundamentally revising: “We begin with several propositions that already are settled or beyond serious dispute.... It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.” In so saying, the Court cast a new light on, and required a fresh understanding of, what had gone before. The key words, and the not really true (meaning, false) ones, are that the choice is one “that the First Amendment makes for us.” (It does no such thing.)

May the Force be with you.

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