COMMENTS ON LAW AND VERSTEEG'S THE DECLINING INFLUENCE OF THE UNITED STATES CONSTITUTION

Abstract

ion at which one engages in the analysis. Surely, the ideas in the U.S. Constitution have done better than, say, the fashions worn by the drafters. Waistcoats and wigs are “out”; but rights and judicial review are surely still “in” even if their precise forms are different from those found in the U.S. Constitution. Thus we might see deep channels of influence that are not immediately apparent. Consider a rock and roll metaphor. Suppose a young person in the 1960s is a fan of musical performers like Bob Dylan, The Who, and The Rolling Stones. As time goes on, the young man ages; by 2012, his ponytail has gone white, as has the hair of his favorite band members. His children and grandchildren may listen to Jack White and Ingrid Michaelson—artists he likes but does not know well. His favorite songs still get radio airplay, but hardly the amount that they did in the 1960s or 1970s. Would we say that because his favorite groups are no longer as popular as they used to be, they are less influential? Not really. Instead, we would say that the medium they helped to create and popularize—rock and roll—has become a large and diverse field of musical endeavor. The influence is measured not by whether Jack White uses precisely the same chord progressions or lyrics, but by the fact that he plays in the same medium. At a high level of abstraction, bands in the two eras are engaged in the same endeavor, even if the details are different. Indeed, it may be that the influence of the Rolling Stones on, say, Jack White, is best studied through looking at aspects that are both taken for granted and difficult to measure. Both play songs in 4/4 time; both have some influence from the electric blues; both like the key of E. This is not to say that White’s music is derivative; indeed, he has many other influences—simply because he began playing later in history—with many other potential role models. Our second point is that we need to distinguish those differences that are produced through agglomeration of new elements from those that are produced through rejection of old elements. When a designer in any endeavor adds new features, she is not necessarily diminishing the influence of older models. On the other hand, when the designer \\jciprod01\productn\n\nyu\87-6\nyu610.txt unknown Seq: 7 3-DEC-12 14:42 2094 NEW YORK UNIVERSITY LAW REVIEW [Vol. 87:2088 rejects essential elements of older models, we might say that the older model has experienced declining influence. Let us take another example from the field of technology. How similar is the manual typewriter to the modern personal computer? Very different, it would seem. On one you can produce neatly printed documents while on another you can shop, watch a film, and communicate across the world (among countless other features). If one were to itemize, using a metric similar to Law and Versteeg’s, the various features of the personal computer and then score different technologies on whether they had such a feature, the typewriter would, alas, appear about as similar to the modern personal computer as would a common telephone. One need only look at a typewriter and personal computer to recognize their evolutionary connection, but the standard metrics of comparison are not actually or easily comparable across eras. Scoring the typewriter on a checklist of modern features tells us simply that document processing has evolved, not that the influence of the typewriter is trivially small.