What is Constitutional Theory About and For? (My Contribution to a Conference on the Unraveling New Deal Settlement)

By Michael C. Dorf

Today I will be attending (via Zoom) an all-day conference on the "Unraveling New Deal Settlement" organized by U Chicago Law Prof Genevieve Lakier and my colleague Prof Nelson Tebbe. The New Deal Settlement refers to the conventional account of constitutional law since the late 1930s, in which courts defer to the outputs of representative institutions except where fundamental rights are at stake. The leading theoretical account is by the late John Hart Ely in his 1980 book Democracy and Distrust. The conference organizers asked us participants to address the questions whether the New Deal Settlement ever really was as robust as it seemed, why it has broken down, and what should replace it.

The participants will be the two organizers, myself, and the following scholars: Kate Andrias; Jack Balkin; Aziz Huq; Amy Kapczynski; Jeremy Kessler; Leah Litman; Sam Moyn; Doug NeJaime; Jed Purdy; Sabeel Rahman; Micah Scwartzman; Amanda Shanor; Steve Shiffrin; Reva Siegel; Gerald Torres; and Laura Weinrib. I've read the short papers the participants were asked to contribute and they're terrific. But now the bad news for my readers: It's a closed conference in order to facilitate genuine discussion rather than performances. To the extent that it's consistent with any confidentiality considerations, I might report general impressions in a follow-up essay. Meanwhile, I've taken the liberty of pasting my own contribution below. Discuss amongst yourselves (because I'll be tied up today).

What is Constitutional Theory About and For?

The prompt for our discussion begins in the dual observation that: (a) John Hart Ely’s representation-reinforcing theory was the linchpin of the New Deal Settlement, but (b) it was never a fully satisfactory account of that settlement (given cases like Griswold and Roe) and (the prompt correctly implies) has become even less satisfactory (as a descriptive account) over the course of the last several decades. Our conference organizers ask us to ponder whether representation-reinforcement or democracy-promotion
provides a good framework for thinking about when courts should intervene in the democratic political process and when they should not. Do we need a meta-theory of constitutional law? If not, how should courts/lawmakers/scholars figure out constitutional meaning? And if so, what should it be? What resources can be drawn upon from existing constitutional law and political theory to develop one? Do we need a meta-theory of constitutional law? If not, how should courts/lawmakers/scholars figure out constitutional meaning? And if so, what should it be? What resources can be drawn upon from existing constitutional law and political theory to develop one?
In thinking about these important questions, I would draw two distinctions: (1) between descriptive and prescriptive theories; and (2) between a theory of constitutional interpretation and a theory of adjudication. After explaining why those distinctions matter, I’ll turn to my own meta-question: (3) By what criteria ought we to judge a prescriptive constitutional theory?

(1) Descriptive and Prescriptive Theories

Ely’s own account was both descriptive and prescriptive. Descriptively, he claimed that the text and structure of the Constitution made representation its master principle, and further, that most of the work of the Warren Court could be best understood as representation-reinforcing. 

Yet Ely’s account was chiefly prescriptive. Ely accepted Bickel’s view that on the whole judicial review is an aberrant institution. Chastened by the New Deal experience, Ely was a default Thayerian who advocated judicial deference to legislative decisions absent some breakdown in the democratic process. The core of the theory was identifying what counted as breakdown, with Warren Court doctrines on apportionment, speech, discrimination, and more serving illustratively.

Ely’s willingness to criticize decisions (like Roe) in which he thought judicial invalidation of legislation could not be justified on representation-reinforcing grounds shows that the prescriptive elements of his theory dominated the descriptive ones. That, in turn, raises the question of what exactly Ely thought was the relation between his descriptive and normative accounts. Ely was not exactly a Dworkinian. He did not think it important that decisions “fit” with prior ones. But then (as others have noted), Dworkin wasn’t exactly a Dworkinian either; in Dworkin’s scholarship, the element of justification typically did more work than the element of fit.

Accordingly, and despite the extensive discussion of particular cases and doctrines in Democracy and Distrust, Ely should be understood as almost entirely a prescriptive theorist. Ely dedicated his book to Earl Warren (for whom he clerked), and he credited Warren (and Justice Stone’s Carolene Products footnote) with having hit upon the correct theory. But for Ely, the correctness of the theory was established on principles independent of the Supreme Court’s cases and doctrines.

Not all constitutional theorists understand the relation of description and prescription (or, if you prefer, of fit and justification) in the way that Ely did. If one does as Dworkin says rather than as he did, one will think that a good prescriptive theory is useless if it does not match up at least passably with existing practice. Thus, one reason why so much of what Justice Thomas advocates is easy to dismiss is that it would require a complete reconstruction of constitutional doctrine. We need not even engage the question of how much weight to give original meaning in a case of first impression to know that Thomas’s proposals to completely abandon the New Deal understanding of the Commerce power or the rule of New York Times v. Sullivan can be safely ignored.

Accordingly, if one thinks fit matters more than Ely or Dworkin (in practice) did, some prescriptive theories will be ruled out—at least in the short run. However, that caveat about timing is important. Today advocating a Rawlsian maxi-min interpretive constitutional theory in which the Court’s highest obligation is to secure the material needs of the nation’s poorest is, to borrow Jack Balkin’s terminology, “off the wall.” But as Balkin has observed, over time, some ideas that were once deemed off the wall find a place on the wall.

Thus, even if one assumes that a prescriptive theory must fit a currently or soon-to-be on-the-wall descriptive account, a more robust requirement of fit than either Dworkin or Ely employed still would not be especially constraining. With another few appointments by Donald Trump, we could imagine Justice Thomas’s version of the Constitution ending up on the wall. Conversely, a Biden administration plus a Democratic Senate could, in time, yield a liberal majority. As a result, few prescriptive accounts will be ruled out.

(2) Interpretation and Adjudication

The subtitle of Ely’s Democracy & Distrust was “A Theory of Judicial Review.” A theory of judicial review is unlikely to be co-extensive with a theory of interpretation. As the political question doctrine reflects, some constitutional matters (such as what counts as an impeachment trial in the Senate) are committed to non-judicial actors. Moreover, Larry Sager has argued persuasively that the courts properly “under-enforce” some constitutional norms. Ely’s default of Thayerian deference as captured in the rational basis test is a leading example. The rational basis test is best understood not as the meaning of equal protection or substantive due process in the absence of a suspect classification or fundamental right; rather, it is the tool of deference that courts use to validate legislative outputs in the absence of a suspect classification or fundamental right. Legislators themselves have a duty to abide by a stricter (though unenforced) conception of constitutional rights.

The prompt for this panel mixes questions that bear on theories of judicial review as well as substantive constitutional interpretation. Yet in principle, a theory of judicial review can be compatible with various theories of interpretation. Imagine a Thayerian judge who believes in deference to legislative outputs absent a clear violation of the Constitution. She could apply that theory of judicial review on top of any substantive theory of interpretation. A Thayerian on judicial review who is an originalist on interpretation will uphold a legislative decision if it falls within a reasonable, though not necessarily the best, originalist interpretation of the Constitution. A Thayerian on judicial review who is a living Constitutionalist on interpretation will uphold a legislative decision if it falls within a reasonable, though not necessarily the best, living Constitutionalist interpretation of the Constitution. Etc.

Even if kept conceptually separate, theories of judicial review and constitutional interpretation may be inter-dependent because judicial review and what is sometimes called popular constitutionalism interact dynamically. Robust judicial review may discourage legislators from taking seriously their own obligations to make constitutional determinations, as they come to think of such matters as reserved for the courts. Conversely, judicial review might actually create incentives for legislators to pay attention to constitutional limits, in the same way that mechanisms of review are thought to promote accountability in other contexts. Both of these conflicting impacts could exist in different contexts at the same time. Exactly how they interact is a complicated empirical question and thus knowing how that ought to affect a theory of judicial review is more complicated still. Suppose you are a Thayerian on judicial review and an originalist on interpretation but you know that the legislature has a majority of living Constitutionalists. Should that push you off of Thayerism?


To answer that last question and others like it we need to know something about the criteria we use to select our theory. In deciding whether one thinks judges and justices ought to employ Thayerism, Elyism, liberal activism, liberal activism disguised as formalism, or some other method, we can approach the matter from one of two broad directions—what I’ll call deductively versus inductively.

A deductive approach is top down. From the nature of the Constitution, conceptions of popular sovereignty, ideas of minority rights, and so forth, one derives a view about the proper role of courts relative to more directly accountable institutions, and from that view one formulates a theory about the proper scope of judicial review. Most constitutional theory about judicial review works in this way.

Alternatively, one might proceed inductively, that is, bottom up. We ask what kinds of outcomes we want across a very wide range of cases, and then design our theory of judicial review in a way that produces those outcomes as frequently as possible.

Constitutional lawyers and theorists often regard inductive approaches as illegitimate. A theory that is, as it were, reverse-engineered to produce particular results on abortion, affirmative action, campaign finance, federalism, gun control, same-sex marriage, and other contested questions seems illegitimately “result-oriented.”

I want to distinguish two ways in which an inductive theory can be deemed result-oriented. One way is that the theory is in fact mere window dressing. Legal realism takes this view of judging in just about all appellate cases. The judges cite formal legal materials and perhaps some theoretical framework such as originalism, but really all that material and theory are under-determinate, allowing judges to reach almost whatever results they want. At least with respect to courts of last resort like the Supreme Court, I think this criticism is mostly fair. Extant theories are under-determinate on contested issues, serving mostly as a method for justifying decisions judges favor on other, ideological grounds.

But there is a second way in which an inductive theory can be result-oriented. One might build a theory with an eye towards reaching particular results. What theory of judicial review, we might ask, will most consistently produce just outcomes? The answer might be “any indeterminate theory, so a justice-seeking judge can dress up whatever just outcome she imposes in legal garb.” But it might not be. One might conclude that, over the long run, a better way to achieve just results is to apply Thayerism or Elyism or some other moderately determinate theory honestly.

I don’t think there’s anything illegitimate about choosing a theory based on the sorts of results it is likely to produce over the long run. Law is an institution we create to serve our social ends. There is no reason to suppose that abstract ends like “ensuring the People have a proper say in their government” or “limiting the courts to their proper role” are always and necessarily more important than achieving justice across a range of concrete issues.

Yet if a bottom-up theory could be theoretically justified, designing one is a huge challenge. Our legal culture rules out some of the leading candidates for producing what one deems just results. “Always vote the liberal way” or “favor the little guy” won’t do. It’s thus not really surprising that our leading contenders for theories of judicial review (like Thayerism and Ely-ism) are procedural, while our leading contenders for substantive interpretive theories (like originalism and living Constitutionalism) are very under-determinate.

* * *

If I could figure out how to work backwards from the concrete results I favor to a suitably abstract but moderately determinate theory, much would depend on what I thought was likely to be the balance of risks and benefits over the long run. For the brief period of the Warren Court, robust judicial review served liberal ends. In most other periods, including our own, robust judicial review has, more often than not, served conservative ends. Thus, Thayerism across the board has its appeal. However, it will only work if adopted by all sides. Otherwise it becomes unilateral disarmament.

Moreover, across-the-board Thayerism is hard to swallow, which is how we got the New Deal settlement in the first place. Maybe Ely was right after all? But then one realizes that every one of Ely’s exceptional democracy-promoting categories can also be turned to conservative ends. Baker v. Carr becomes an excuse for Bush v. Gore (even as the Court still allows political gerrymandering); Warren Court free speech precedents become an excuse for Citizens United v. FEC; and Brown v. Board becomes the basis for attacking affirmative action.

In the end, finding the right theory is orders of magnitude less important than winning elections.