The Impossibility of Constitutional Theory

One day I will write an article with this title. What I mean by impossibility is that there is no normative theory that can reconcile all of the inconsistent demands that people put on the text and on the doctrine. Let me give you two simple illustrations. Critics of originalism (to be precise, original expected application) point out correctly that many Supreme Court decisions that are now accepted as settled would have come out the other way if that interpretative approach was applied at the time. This forces originalists to choose between two options. One is to come up with a convoluted explanation of why a contested case really was consistent with the Framers' understanding. The other is to concede that it was not but say that stare decisis should apply and the decision should be retained. Thus, you will never hear the following colloquy at a Supreme Court confirmation hearing: Q: Was Brown correctly decided? A: Not at the time, but I accept it as settled law now. This would be an unacceptable answer, because (as Mark Graber likes to say), a fundamental tenet of constitutional law is that Brown was right. Advocates of living constitutionalism or any theory that rejects original expected application face a similar problem. They are confronted with many cases that we think are wrong now but were considered right when they were decided. This forces a living constitutionalist to come up with a convoluted explanation for why the decision really was wrong from the day it was decided. Thus, you will never hear the following colloquy at a Supreme Court confirmation hearing: Q: Was Plessy correctly decided? A: Yes, at the time. But in light of our experience since then, we can now see that it is wrong. This would also be an unacceptable answer, because most people reject the idea that the unamended Constitution could have ever sanctioned segregation. And this is not just true for prospective judges. Just as originalists work hard to say that Brown or other popular non-originalist decisions were right, non-originalists generally work hard to say that Dred Scott, Lochner, or Plessy were wrong. They don't typically say, "Well, those decisions just reflected the social movements of the time." I am not saying that constitutional theory is worthless, of course. But it is overrated.

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