—Deepa Das Acevedo, Associate Professor of Law, University of Alabama School of Law
On October 14, 2022, the University of Alabama School of Law hosted a symposium centered on “constitutional ethnography”—a term coined almost twenty years ago by Kim Lane Scheppele to describe “the study of the central legal elements of politics using methods that are capable of recovering the lived detail of the politico-legal landscape.” Studying constitutions ethnographically, Kim suggested, would provide an antidote to the “variable-ization” and “nationalism” plaguing comparative scholarship.
The symposium brought together anthropologists of law and lawyer-anthropologists, including Anya Bernstein, Leo Coleman, John Conley, Carol Greenhouse, Neil Kaplan-Kelly, Sindiso Mnisi Weeks, Jeffrey Omari, Arzoo Osanloo, and Alison Dundes Renteln. All of them have made it their business to study constitutional issues beyond the four corners of a written charter. They have conducted interviews and walk-alongs, observed courtrooms, haunted community centers, read transcripts, and collected pamphlets—activities that may complement many other research methodologies but are central to any study of constitutional law that calls itself ethnographic.
At the same time, the event was not just intended to facilitate conversations among legal anthropologists. (We are a small scholarly community and prone to conversing whether or not someone throws us a conference for that purpose.) Consequently, the symposium also included a handful of interdisciplinary scholars whose methods or sheer lived experience has rendered them honorary ethnographers. In this group were Bernadette Atuahene, Marianne Constable, Tom Ginsburg, David Law, and Adnan Zulfiqar. And finally, listening in virtually from around the world, were several dozen scholars of various disciplinary persuasions, all of whom, it seems, were interested in having the sort of conversation about conversations that we were about to embark on using Kim’s concept as an orienting guide.
The American legal academy, I suggested during my opening remarks, is filled with scholars who spend a great deal of their lives discussing matters that are constitutional. How will that potential firecracker of a case actually turn out? Yes, dear student, I would be delighted to review the Dormant Commerce Clause with you. And: surely the Constitution doesn’t allow the President (pick a president) to do that! For those of us whose worlds revolve around two, three, or hundreds of constitutional texts, these conversations multiply exponentially.
But if legal scholars in the United States talk about constitutions often and with gusto, they mostly study them almost exclusively through their written texts and derivatives. At some level, it is hard to argue with this approach, even though careers I can only aspire to have been founded on doing just that. The written word seems like an eminently natural starting point for the study of written words.
What I would like to suggest, nevertheless, is that when it comes to constitutional matters, the written word is just that: a place to begin—neither more nor less. Words that structure daily life, words that are a condition of possibility for everyday action—these are words that command attention on and off the page. To “pay the words extra,” as it were, I think we need to have, observe, elicit, and trace more conversations about them. Doing so is a necessary part of acknowledging that constitutions, although they address theoretically weighty issues, are also emphatically everyday documents. It is, in other words, a way of peopling constitutional law.
In my own work, which has largely focused on India, doing this has involved expanding the scope of analysis to something beyond a discrete court opinion or a set of hearings and the written detritus associated with either. In an early line of research I worked to understand how a single constitution could include, as India’s charter does, both an express avowal of secular governance and an equally explicit authorization for the state’s regulation of religious life. I observed court proceedings, interviewed judges, lawyers, and litigants, read case law, and tracked news coverage, all in the hopes of learning how the inhabitants of this particular universe made sense of a situation that, to me, seemed permeated by contradiction. What I saw was a kind of push-pull dynamic between two contrasting theories of religion-state and particularly citizen-state relations: a dynamic and open-ended process that would have been mostly invisible without ethnography and mostly inexplicable without law.
For several years after, my attentions were consumed by a single dispute that had seemed quixotic when I first encountered it and was transformative by the time I decided, at long last, to write a book about it. The battle for Sabarimala—a remarkable temple dedicated to a remarkable deity in a state, Kerala, that is remarkable by both national and international standards—only erupted in 2018. But as I have been arguing for years, the dispute over women’s access to Sabarimala, which reached a pitch (although not, as it turns out, a resolution) because of a Supreme Court decision striking down the temple’s unusual admissions policies, was both long-lived and importantly non-legal in nature. What mattered as much as the arguments made before or by courts were the developments—scandals, protests, and movements among them—that shaped and were shaped by constitutional prose.
The essays in this collection, which include Kim’s keynote comments as well as a handful of responses put forward by the participants, provide a snapshot of a day spent discussing how to study constitutions off and beyond the page. They range geographically—from the United States to Hungary, from Northern Ireland to South Africa—and they also range thematically, in their approach to envisioning the ethnographic study of constitutions. What they share, like the essay that inspired these conversations, is a commitment to seeing constitutions as conversations, and to having conversations about them.
Suggested citation: Deepa Das Acevedo, Peopling Constitutional Law: Revisiting ‘Constitutional Ethnography’ in the Twenty-First Century, Int’l J. Const. L. Blog, Mar. 29, 2023, at: iconnectblog.com/peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century/
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