Legitimating and Delegitimating Constitutional Theory (cross-posted on Balkinization)
by Michael C. Dorf
[N.B. The following essay also appears on Balkinization as part of that blog's 20th Anniversary Symposium on the Present State of Constitutional Theory. I'm grateful to Jack Balkin for inviting me to participate and for permitting me to cross-post here.]
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Constitutional law mostly comprises the rules and standards that courts purport to derive from the constitutional text, as informed by original understanding, historical development, judicial precedent, and normative considerations. I say “mostly” because courts are not the only actors who make constitutional meaning and some exceptionally clear constitutional rules need not be derived at all; no substantial contests arise over such questions as when a new Congress begins or the age requirements for being a representative, Senator, or President. Nonetheless, the Constitution is short; governing a modern country with a population of a third of a billion people is complex; and as Tocqueville observed long ago, “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Thus, the body of court-made constitutional law that fills in textual gaps is very substantial.
Constitutional theory is more abstract than constitutional law, but pinning down the precise difference poses challenges because the two realms overlap. We might say that constitutional theory concerns how to decide questions of constitutional law, but questions about the nature of interpretation, construction, and judicial review—which might be thought to lie at the core of constitutional theory—are also internal to constitutional law. Landmark cases from the early republic like Calder v. Bull and McCulloch v. Maryland are remembered more for their contribution to the debate over interpretation, construction, and judicial review than for their particular holdings. More recent examples abound as well. For example, an assertive conservative Court eager to move the law with respect to abortion, affirmative action, church-state separation, gun control, and more has lately sparked debates within constitutional law about originalism and stare decisis—matters that also figure centrally in constitutional theory.
Luckily, for most purposes it is not especially important to draw a sharp boundary between constitutional law and theory. Even so, as I explain below, those constitutional theories that have the greatest overlap with constitutional law will also have the greatest tendency to work as justifications of the work of the Supreme Court (whether or not they are intended for that purpose). Depending on one’s view of the Court’s work, that is either a feature or a bug of a constitutional theory.
Reformist, Descriptive, and Justificatory Theories
Many constitutional theories are reformist. They tell judges and others to interpret the Constitution differently from current practice. In its earlier versions, originalism was a reformist theory. For example, much of Robert Bork’s 1990 book The Tempting of America criticized then-binding Supreme Court case law on the ground that it departed from the original understanding. To be sure, some scholars these days (especially William Baude and Stephen Sachs) contend that originalism broadly understood is already the law. And as the Supreme Court conservative super-majority consolidates its power, that claim can increasingly be made about more traditional conceptions of originalism as well. But many scholars who consider themselves originalists still believe (correctly in my view) that in a great many respects extant constitutional law is nonoriginalist. For them, originalism is a reform program. So are other theories that critique extant law from some ideal perspective.
Nonetheless, few constitutional theories are purely prescriptive. Most are also at least partly descriptive. Of course, one doesn’t necessarily need a theory to describe constitutional law (or any other body of law). Hornbooks and (the less sophisticated) treatises offer constitutional law as a body of rules and standards, much in the way that a complex statute or regulation might set out rules and standards without any overarching explanation or justification. What makes a descriptive theory a theory is its attempt to make sense of the body of law it describes.
John Hart Ely’s theory of judicial review as serving the end of reinforcing the representative nature of American government is a descriptive theory of the work of the Warren Court. Taking Justice Stone’s footnote 4 in Carolene Products as his starting point, Ely saw his task (in Democracy and Distrust and other work) as providing a justification for Warren Court judicial activism that distinguished it from the Lochner era. The theory is only partly descriptive, however, as Ely used it not only to praise Warren Court decisions but also to criticize rulings (especially Roe v. Wade) that he thought did not fit within the representation-reinforcement framework.
Seen that way, Ely’s theory may be understood as a specific exemplar of the general methodology promoted by coherentists like Ronald Dworkin. Dworkin saw his constitutional theory (expounded in his book The Moral Reading of the American Constitution and other writings) as an application of his broader account of how courts in common-law jurisdictions decide cases. Analogizing the work of a common-law judge to someone taking part in the writing of a chain novel—fiction written by successive authors each building on the work of their predecessors—Dworkin argued that a correct legal decision had to fit (most of) the prior precedents but also justify the resulting body of law. Dworkin’s critics often said that in his hands, the methodology was mostly about justification (i.e., a reflection of the moral principles to which Dworkin subscribed) and insufficiently about fit, but the approach can be understood apart from how Dworkin himself applied it.
Not just Ely’s representation-reinforcement, but most of the leading constitutional theories are coherentist. Originalists—even of the old-school type—often seek authority for their approach in some element of current or past practice. Thus, for example, Justice Thomas (in his concurrence in United States v. Lopez) doesn’t say that the opinions of the Marshall Court broadly construing congressional power along Hamiltonian rather than Jeffersonian lines are wrong. Rather, he argues that rulings like Gibbons v. Ogden do not in fact establish very broad federal power, thus conform to the original understanding, and are accordingly correct. Even theories that promote quite reformist ideas—such as Lawrence Sager’s justice-seeking constitutionalism—typically make contact with extant law in various places—as when Sager sees the Supreme Court practicing “under-enforcement” in conformity with his views.
If, as I am suggesting, most constitutional theories are broadly Dworkinian, the enterprise of constitutional theory will pose a challenge for theorists who find their views very far out of step with the practice of constitutional law. A justificatory account that a liberal finds normatively satisfying will do poorly along the dimension of fit with Roberts Court rulings. It might be possible for a period to offer the normative justification for part of the corpus of constitutional law—much in the way that Ely built an account of most of the Warren Court’s work that cautioned against some of the Burger Court’s output. But as the current practice moves further and further away from the theorist’s idealized past, the account becomes more purely reformist.
There’s nothing wrong with championing a reformist view, but the more one insists on the correctness of a course of action that is off the table as a practical matter, the more one can be dismissed as a crank. That was how Justice Thomas was widely perceived until recently.
One might look at the experience of Justice Thomas and say he was right to hold out because now he is no longer a crank. However, that’s not because Justice Thomas persuaded colleagues of the correctness of his views through dogged determination. Rather, the hardball tactics of Senate Republicans under Mitch McConnell’s leadership and the somewhat random timing of Supreme Court vacancies brought Justice Thomas new colleagues who share his policy and jurisprudential druthers.
That could happen for scholars too. Someone who wrote articles about original meaning thirty years ago—when original meaning was a factor in constitutional adjudication but not typically denominated as dispositive—will find that their work is now more relevant than before. However, if one’s policy and jurisprudential druthers do not align with the Court, then coherentist scholarship will be a frustrating or even counter-productive enterprise—as one ends up providing a justification for a body of law one disapproves.
Crouch, Jujitsu, or Critique
What is to be done? There are, in my view, two main options.
One approach is what Mark Tushnet termed “defensive crouch constitutionalism”—in which liberal lawyers and scholars work within the existing conservative framework to try to preserve as many liberal precedents as possible. A somewhat more aggressive variation of this strategy is what I have called “litigation jujitsu”—in which one uses generally conservative doctrines announced by a conservative Court but for liberal ends.
The main problem with defensive crouch constitutionalism and litigation jujitsu is that they both depend on the good faith of conservative jurists. It’s perfectly fine to argue (as Jack Balkin and others have) that the original meaning of the Fourteenth Amendment supports a right to abortion. It might even be true. But that doesn’t mean that jurists with strong anti-abortion priors will find the argument persuasive.
In any event, neither defensive crouch constitutionalism nor litigation jujitsu is a constitutional theory in any real sense. These are strategies for liberal satisficing in light of the hyper-conservative Supreme Court.
A second approach abandons both Dworkinian dimensions of fit and justification by substituting critique. Key exemplars are critical legal studies and its various offshoots, such as critical race theory and critical feminism. Critical theories that hew closely to the legal realist enterprise aim to demonstrate the substantial under-determinacy of formal legal materials and thus reveal the substantial room for judges to exercise normative judgment. Critical theories more closely linked to the justice claims of particular subordinated groups aim to uncover patterns of hierarchy and domination in constitutional (and other bodies of) law.
One might think that critical theories run the same risk of crankishness that I identified in purely reformist theories. The Supreme Court is not about to adopt critical race theory, a skeptic might say, so what is the point of viewing its output through a critical race lens?
Yet that response misunderstands the point of (at least some) critical theories. Sometimes one criticizes how an institution operates in order to show how to improve it. However, one can also criticize an institution in order to delegitimate it. Think of the difference between someone in 1789 saying that Louis XVI was a bad king—which implies that he should do better—versus saying that France should not have a king at all.
To be clear, not all or even most critical theories call for the abolition of the Constitution, judicial review, or the Supreme Court. However, what I am suggesting is that critical constitutional theories should not be judged by the same criteria as coherentist constitutional theories. A critical theorist who shows that the best descriptive account of extant constitutional law reveals it to be an instrument of laissez-faire capitalism, white supremacy, or paternalism, has done all the work they need to do. The theorist need not and should not go on to say that any of these ideologies justifies the body of constitutional law.
Finally, I should note that critical theories need not be politically radical. As dissatisfaction with the Supreme Court spreads to the center-left and center, there will increasingly be a space for what we might call centrist critical constitutional theory. And some of us will find ourselves in the position of Molière’s bourgeois gentilhomme with respect to the speaking of prose—delighted to discover that we have been engaged in the practice all along.