How Star Wars Illuminates Constitutional Law (and

Authorship)

Cass R. Sunstein
Review of How Star Wars Conquered the Universe: The Past, Present, and Future of a
Multibillion Dollar Franchise, by Chris Taylor
Head of Zeus, 2015

Here is one account of the six movies that now constitute Star Wars:

George Lucas wrote Episode IV: A New Hope, the first of the six movies in the
series, with a clear understanding of the plots and sequences of all six. He knew that the
central characters would be a father and twins. He knew that Darth Vader (“Dark
Father”) was Annakin Skywalker, Luke Skywalker’s father. He knew that Luke and Leia
were twins. He knew that Obi-Wan Kenobi was responsible for the horrific injuries that
ultimately put Darth Vader in a kind of mechanical armor. He knew that ultimately, Luke
Skywalker, Vader’s son, would redeem his father by turning him from the dark side. He
knew that the act of redemption would occur as Vader chose to kill Emperor Palpatine, a
Sith Lord (and master of the dark side). In fact Lucas wrote the entire tale in a book,
called The Journal of the Whills, from which the six movies were taken.

Lucas himself has embraced something like this account: “The Star Wars series
started out as a movie that ended up being so big that I took each act and cut it into its
own movie. . . . The original concept really related to a father and a son, and twins – a
son and a daughter. It was that relationship that was the core of the story.” Since 1979,
Lucas has contended that he took the first draft of Star Wars, cut it in half, chose the
second half, and used that for the original trilogy (p. 115).

But this account is wildly inaccurate. As Chris Taylor shows in his strange, fun,
and fact-filled book, the Star Wars series was hardly planned in advance; it involved a
great deal of rethinking, improvisation, and surprise (even to Lucas). To be sure, Taylor
is focused on many subjects aside from the composition of the narrative, including the
entire Star Wars phenomenon, as reflected in its international explosion over time and the
actions and obsessions of its countless fans. (To those who are interested in network
externalities, coordination problems, solidarity goods, informational cascades, and
reputational cascades, there is a treasure trove of material here.) But as we shall see, the
composition, and its multiple twists and turns, tell us a great deal about the nature of the
production of narratives in general, including those that have many authors, such as
constitutional law.

My major theme shall be the immense role of serendipity and happenstance in the
creative imagination, certainly in single-authored works, but even more in multi-authored
ones extending over time. Serendipity imposes serious demands on the search for
coherence in both literature and law (and history and life as well). That search leads some

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people (like Lucas) to become “originalists” of one or another kind, pointing to some sort
of Journal of the Whills and suppressing the nature of their own creativity and authorship.
The suppression appears to respond to a serious human need, even craving (in both
literature and law), but it is a significant obstacle to understanding and critical reflection.

To readers who are not interested in Star Wars, a cautionary note: Some of the
following is going to seem (let’s say) a bit obscure; you might want to do some serious
skimming. We’ll get to the larger themes before long.

When Lucas began, he was not, in fact, writing about “a father and a son, and
twins.” In Taylor’s words, “the course of creativity rarely runs smooth” (p. 102). A
significant part of Lucas’s start involved an apparently random list of a large number of
names, most of which never made it into the movies: Emperor Ford Xerxes the Third;
Xenos; Han Solo (“leader of the Hubble people”); Thorpe; Roland; Lars; Kane; Luke
Skywalker (“Prince of Bebers”). Lucas apparently had just one scene clear in his mind, a
kind of dogfight in outer space, in which ships “would hurtle and tumble around after
each other, like World War II fighters, like wild birds” (p. 103).

When he finally started the story that became A New Hope, he began with a scene
that featured now-familiar names for unfamiliar characters, including an eighteen-year-
old named Annikin Starkiller (note to the cogniscienti: that is the original spelling), who
lived with his father, Kane, and his brother Deak. A tall Sith knight kills Deak, and Kane
asks an old friend, General Luke Skywalker, to train Annikin as a Jedi. There is a brief
mention of the Force early in the story. King Kayos, leader of the planet Aquilae, sends
his senators off with the words, “May the Force of Others be with you all.” The idea is
otherwise unexplained. Later drafts distinguished between the “Ashla Force,” which was
the light side, and the “Bogan force,” which was the dark, and emphasized the role of
something called the “Kiber Crystal” in amplifying the power of the Force of Others. All
this was of course abandoned as Lucas rewrote the story (and as Luke, not coincidentally
his namesake, ran away with the narrative).

Even at relatively late stages in the drafting, Lucas did not think that Darth Vader
was Luke’s father. Nor did he seek to preserve ambiguity on that count. Actually he
thought that Darth Vader was not Luke’s father. (It is an originalist myth that “Darth
Vader” is a play on “Dark Father.”) When he wrote A New Hope and The Empire Strikes
Back, he did not think that Luke and Leia were twins. On the contrary – and as the
unmistakable sexual tension between the two suggests – he thought that they were not
siblings. When Lucas began The Empire Strikes Back, he suggested that Luke had a “twin
sister on the other side of the universe – placed there for safety; she too is being trained as
a Jedi” (p. 232). So much for the idea that Luke and Leia were to be twins from the
beginning.

With respect to Darth Vader, Taylor shows that Lucas had no act of redemption in
mind. Even in the early drafts of Return of the Jedi, Vader was not redeemed, but was
instead rendered irrelevant, as Grand Moff Jerrjerrod became the Emperor’s new favorite
(p. 267). Nor did Lucas have any sense, at the initial stages, that Palpatine would turn out
to be a Sith Lord. And by the way, the mysterious and much-discussed Journal of the
Whills did not exist, except as a very brief early fragment (as elaborated in particular

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detail by Michael Kaminski in his comprehensive 2008 book, The Secret History of Star
Wars).

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. Lucas has claimed that he “had Vader in mind as Luke’s
father all along” (p. 237), but far more revealingly, he said in 1993, “When you’re
creating something like that, the characters take over, and they begin to tell the story
apart from what you’re doing. . . . Then you have to figure out how to put the puzzle back
together so it makes sense” (p. 237).

Taylor explains that while writing the climactic scene of The Emperor Strikes
Back, Lucas decided that Vader should say to Luke, “We will rule the galaxy as father
and son.” Those words apparently jarred his imagination, producing what must have been
an “aha,” a shiver, a tingle in the spine, suddenly explaining “at a strike why everyone
from Uncle Owen to Obi-Wan to Yoda has been so concerned about Luke’s
development, and whether he would grow up to be like his father.”

In the Star Wars series, as in many works of literature, “I am your father”

moments and their accompanying shivers are defining; they involve pivotal transitions
and reversals of course that nonetheless maintain continuity with the previous story,
which now becomes different and deeper. (In constitutional law, many law professors
argue for such moments, for example by recognizing new limits on the power of the
federal government or new rights of various sorts.) They also created a significant
challenge for Lucas, because they meant that viewers had to reassess past scenes,
sometimes in fundamental ways. (Lucas did have a lot of help, including friendly critics
such as Steven Spielberg and close colleagues such as Lawrence Kasdan, co-writer of
The Empire Strikes Back and Return of the Jedi, but to a remarkable extent, the central
plots are Lucas’ own.) If the reassessment produced utter incredulity in the audience –
not an “OMG” but a “WTF?” -- any “I am your father” moment would not work.

Suppose, for example, that Vader said, “I am your son,” or “I am your cat,” or “I
am Captain Kirk,” or even, “I am R2D2.” If so, the whole thing would have been a mess.
What was needed was a kind of audience gasp that contained at once genuine
astonishment, even a moment of disbelief, and then a kind of awed, “it all makes sense
now.” The best mysteries work just that way. Gone Girl is a recent example; A.S. Byatt’s
magnificent Possession has a number of such moments, and on this count, Shakespeare
was of course the master of Jedi masters. As we shall see, something similar can be said
for the greatest judicial opinions in constitutional law. (Brown v. Bd. of Educ. is an iconic
“I am your father” moment.) If viewers can reassess past scenes in a way that makes the
“I am your father” moment seem intelligible and in retrospect even inevitable, the
indispensable sense of a coherent narrative is preserved.

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 Even as it was, the “I am your father” moment in The Empire Strikes Back
produced an acute dilemma: In A New Hope, Obi-Wan Kenobi had told Luke that Darth
Vader “killed your father.” Was he lying? If he was, then Obi-Wan had some serious
explaining to do. Why would the sainted Obi-Wan lie to young Luke? Lucas produced an
ingenious solution to this problem. In Return of the Jedi, he had Obi-Wan explain: “Your
father... was seduced by the Dark Side of the Force. He ceased to be Anakin Skywalker
and ‘became’ Darth Vader. When that happened, the good man who was your father was
destroyed. So what I told you was true... from a certain point of view.” In certain circles,
this explanation is infamous (“from a certain point of view” can be taken as a confession
of untruthfulness), but it makes sufficient sense to preserve the narrative.

What about the fact that Luke and Leia turned out to be twins? In a way, that
particular “I am your father” moment turned out to be even more challenging. Mark
Hamill himself said, “This just seemed a really lame attempt to top the Vader thing” (p.
263). That “lame attempt” was made in large part because in The Empire Strikes Back,
Lucas had Yoda say, in response to Obi-Wan’s suggestion that Luke was their “last
hope,” that “there is another.” As Taylor explains, Lucas wrote this mysterious and
intriguing suggestion in part to “enhance the audience’s perception of Luke’s jeopardy;
the story doesn’t need him?” (p. 263). The suggestion also opened up the possibility of
Episodes VII, VIII, and IX, focusing on the twin sister. But when it came time to write
Return of the Jedi, Lucas and his actors had little interest in making more movies. How
then to solve the mystery – and also to resolve the romantic triangle that involved Han
Solo, Luke, and Leia?

Lucas’ solution was to make clear that Leia was the other and that two members
of the triangle were twins. The sexual charge between the siblings in A New Hope and
The Empire Strikes Back did create a problem. As noted, Lucas’ solution was to ignore it.
(Were those scenes dicta?) And to hammer home (a bit heavy-handedly) the plausibility
of their sibling status, he has Leia say, in response to the news, “I know; I’ve always
known.” Apparently Lucas hoped that if Leia herself always knew, then the audience
might think that their blood relationship was credible, even planned, and not a bizarre,
coherence-destroying shift from what had gone before. (Lawyers will be able to think
here of their preferred legal analogies.)

And then there is, of course, Hans Solo’s immortal line, “It’s the ship that did the
Kessel Run in less than twelve parsecs.” With its irresistible specificity, and its
combination of immediate familiarity (“less than twelve parsecs” sounds real) and
foreignness (what’s “the Kessel Run?”), the line, delivered with suitable self-satisfaction
by Harrison Ford, captures much of what makes the series work. (The line actually has
absolutely nothing to do with this review, but I can’t resist mentioning it.)

The original trilogy, and in fact the entire set of six, could easily be called, “The
Redemption of Annakin Skywalker,” even though Lucas originally conceived of Darth
Vader as a relatively minor character (just nine minutes of screen time in A New Hope!),
and even though the redemption theme was itself a very late thought, almost an
afterthought. In this respect, the series does not, on reflection, cohere, though its lack of
coherence makes it far more interesting. The second trilogy, detailing Annakin’s turn to
the Dark Side, is ostensibly about one thing above all: the perils of attachment.

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Influenced by Buddhism, Lucas self-consciously portrayed a person turning to evil
because he could not “let go” – of his mother and of his beloved. Fear of loss of
attachment is Annakin’s downfall. In Yoda’s words, “Fear is the path to the dark side.
Fear leads to anger. Anger leads to hate. Hate leads to suffering.” But in Return of the
Jedi, Vader is redeemed not by distance but by attachment. He cannot bear to see his son
die, and that is why he kills the Emperor. He is redeemed by love, not distance -- and so
he is, when redeemed, continuous with his earlier self, showing the characteristics that
lead him to the dark side. Lucas’ unconscious mind, ultimately pressing that theme,
turned out to be more complicated than his apparent intentions. (On this count, the Force
was unquestionably with him.)

Taylor’s subtitle is “the past, present, and future of a multibillion dollar

franchise,” and his book goes back and forth from present-day enthusiasts (including
members of a Navajo tribe, seeing the movie in its native language) to Lucas’ early
influences (including Buck Rogers and Flash Gordon). Taylor has numerous tales to tell,
loosely organized under the Star Wars rubric. If you are interested in how the story
actually developed, you can find the essential narrative here (though Kaminski’s secret
history is far more elaborate). Now to my main theme: That narrative offers broad lessons
not only for movies, but also for creativity of many different kinds, and in areas that
include novels, poems, histories, music, and law. Those lessons involve, above all, the
impossibility of planning (in literature or law), the eruptive nature of the creative
imagination (in literature and law), and the (challenging but blessed) difficulty of
achieving coherence.

In his influential account of legal reasoning, Ronald Dworkin provided the

arresting metaphor of a chain novel. Assume that ten people are charged with producing a
novel, with each person asked to produce a specified chapter. Jones writes chapter one –
say, about a woman, a business traveller, who turns out to seated next to a man on a
plane, also a business traveller, on a flight from New York to San Francisco. Smith writes
chapter two, and details the conversation between the two. As Smith develops the plot,
neither is married, and romantic sparks start to fly between them. Now it is Wilson’s turn.
What will her third chapter look like?

Dworkin urges that if she is to be faithful to her task, she will want to make the
emerging novel the best that it can be. To do that, she will have to fit what has gone
before. If the flight suddenly diverts toward Tatooine (Luke’s home planet), or if the
woman turns out to be a Sith, the story will lose coherence (unless Wilson is very clever).
Simple and abstract though their chapters are, Jones and Smith have imposed real
constraints on Wilson. But within the constraints of fit, Wilson will have many options,
some evidently better than others. If the two characters lose interest in one another and
start reading the newspaper, the plot will not go anywhere. If the woman in the story
turns out to be a fugitive from justice, because she worked for the CIA and has recently
been accused of leaking classified materials, the story might turn out to be pretty
interesting, or perhaps pretty silly.

Dworkin claims that the chain novel metaphor tells us a lot about the nature of
interpretation in general and legal interpretation in particular. Let us bracket some
objections and notice that for writers of narratives, and perhaps writers in general, the

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metaphor captures the intrapersonal case, not only the interpersonal one. Certainly this
has been true for George Lucas. Many authors start with a vision or a kernel or an idea –
a first paragraph, a first page, a scene – without any clear sense of ultimate direction or of
how to get there. They have no Journal of the Whills, setting out everything in advance.
As the authors build their narrative, there is constant attention to fit and justification. If
there is an “I am your father” moment – and many creative writers hope that there will be
-- it tends to erupt from the unconscious, and it must cohere with what has gone before.

Here is an example of the construction of narrative, in real time, from the actual
writing of The Return of the Jedi, involving Lucas and his great collaborator Lawrence
Kasden:

Kasdan: I think you should kill Luke and have Leia take over.
Lucas: You don’t want to kill Luke.
Kasdan: Okay, then kill Yoda.
Lucas: I don’t want to kill Yoda. You don’t have to kill people. You’re a product
of the 1980s. You don’t go around killing people. It’s not nice.
Kasdan: No, I’m not. I’m trying to give the story some kind of an edge to it. . . .
Lucas: By killing somebody, I think you alienate the audience.
Kasdan: I’m saying that the movie has more emotional weight if someone you
love is lost along the way; the journey has more impact.
Lucas: I don’t like that and I don’t believe that.
Kasdan: Well, that’s all right.
Lucas: I have always hated that in movies, when you go along and one of the
main characters gets killed. This is a fairytale. You want everybody to live happily ever
after and nothing bad happens to anybody. . . . The whole point of the film, the whole
emotion that I am trying to get at the end of this film, is for you to be real uplifted,
emotionally and spiritually, and feel absolutely good about life. That is the greatest thing
that we could possibly ever do.

In my view, Lucas wins the argument by knockout, in terms of both fit and
justification. (Precious words: “I don’t like that and I don’t believe that.”) But Yoda does
end up dying. (Kind of.)

Of course the chain novel analogy, including the Star Wars example, is not
perfect or precise. 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. With the unending serial that is constitutional law, some kind of plot
twist might turn out to be inevitable (and not merely to avoid monotony).

The problem is complicated by the fact that constitutional law has numerous
authors, not only at a single moment in time, but also over long periods, and often with
fundamentally different ideas (certainly about justification). A small group of people,
working in the same week or month or year, might be able to create a coherent narrative.
This is much harder for dozens of people composing a tale over decades. In those
circumstances, we will inevitably see departures and deviations, and what seem, to some,

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to be extraordinary or shiver-producing “I am your father” moments will seem, to others,
to be moments of betrayal or absurdity or cringe-production (“I am your cat”).

It is also important that Supreme Court justices have incomplete control over their
own jurisdiction. To be sure, they can deny certiorari, but if the lower courts are divided,
or if the issue has great national importance, it will be hard for the Court to refuse to hear
the case. Suppose that in our previous example, a chain novelist were suddenly required
to write a chapter about how the woman on the plane first became interested in the CIA,
or that Lucas were suddenly required, at an inopportune time, to make a movie about
Leia’s childhood. If so, it might be much harder both to ensure coherence and to preserve
the necessary space for the proper “I am your father” moments.

There are also differences between narrative conventions, which constrain

novelists and screenwriters, and legal and political conventions, which constrain courts.
A novelist could not easily spend several pages on the meaning of section 553 of the
Administrative Procedure Act (unless she is exceptionally skilled), and a judge could not
decide that for a few pages, his major goal is to make things really fun (or tragic, or
sexy). While the conventions overlap (a gay Star Wars character in 1977 would have
been a bold move, tracking constitutional law), they have major differences along
multiple dimensions. But it remains true that the chain novel metaphor illuminates a great
deal about both constraint and creativity in law.

Unfortunately, Dworkin has little to say about the role of serendipity and
improvisation in legal reasoning; this is a real gap. The narrative arc of constitutional law
is full of surprises and turns and reversals. After the fact, we often take that arc as
inevitable and even planned, but it isn’t so. 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
ones, are that the choice is one “that the First Amendment makes for us.”)

With the late protection of commercial speech in view, we might venture another
understanding of our free speech tradition: Political speech has long been at the “core” of
that tradition, but very late in the game (1976!), the Court wrongly added commercial
advertising, in a way that compromised and undermined the tradition. The protection of
such advertising was a false move, one that fails the constraints of fit, and also that fails
to justify what had come before. (Perhaps protection of commercial advertising is

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constitutional law’s The Phantom Menace.) But matters are actually far more
complicated than that, and the role of creativity and reversals is much larger. For the
overwhelming majority of the Constitution’s life, federal and state governments were
permitted to punish speech that they deemed to be dangerous, even if that speech did not
create anything like a clear and present danger. As late as 1960, dissenters were at serious
risk if the government really wanted to punish them.

The robust protection now given to political speech is a creation of a brief (and
late, and shining) moment in time, punctuated by “I am your father” decisions, most
prominently in 1964 (New York Times v. Sullivan) and 1969 (Brandenburg v. Ohio). In
using the First Amendment as a barrier to much of state libel law in Sullivan, the Court
asserted a truth that requiring a rethinking of all that had come before: “the pall of fear
and timidity imposed upon those who would give voice to public criticism is an
atmosphere in which the First Amendment criticisms cannot survive.”

What can be said about the First Amendment can be said about countless domains
of constitutional law. The current protection against racial discrimination is a product of
the 1950s. Religious liberty, as we live it, is a product of the 1960s. The ban on sex
discrimination comes from the 1970s. Sharp constraints on affirmative action are a
product of the 1990s and 2000s. The constitutional protection afforded to individual gun
ownership did not really come until the twenty-first century. In each of these cases,
lawyers and judges work hard to point to a Journal of the Whills, but it just isn’t there.
Nothing here was inevitable, and without contingent social forces and judgments (to the
effect of “that is the greatest thing that we could possibly ever do”), radically different
constitutional settlements would have emerged.

In any particular period, constitutional law conveys an aura of inevitability, as if

the prevailing narrative were planned or foreordained. Assuming the role of Jedi, many
originalists, evidently concerned to preserve the constitutional status quo, have worked
exceedingly hard to demonstrate that wide swaths of current doctrine actually follow
from the original understanding, even if that doctrine was established in the 1950s, the
1980s, the 2000s, or last year. Also self-portrayed Jedi, many nonoriginalists make
similar claims, contending that they are speaking for the animating purposes of the
provisions that they are interpreting, or spelling out the inner logic of those provisions.

Don’t believe them. Whether Jedi or Sith, the authors of constitutional law are a
lot like the author of Star Wars, disguising the essential nature of their own creative
processes.