Constitutional Theory As I Found It

When I first began studying constitutional theory in 1982, legal scholars were still in the midst of evaluating two major works published in 1980: the late John Hart Ely's Democracy and Distrust¹ and Jesse Choper's Judicial Review and the National Political Process.² While both books were impressive works of scholarship, Ely's struck me as clearly being more insightful and suggestive. Choper's insistence that the Supreme Court stay out of federalism and separation of powers cases seemed undertheorized and undermotivated. After all, especially compared to what came later, the early 1980s was not a period in which the Court was charting a new course in either area of constitutional law.

Yet Ely and Choper shared a common goal — to show how judicial review could play a useful role in the constitutional order while remaining subject to some fundamental check. Despite their advocacy of judicial activism on behalf of democracy (Ely) and fundamental rights (Choper), more than an echo of the kind of judicial restraint associated with Justice Frankfurter remained. Ely was skeptical about fundamental rights analysis and the value of normative philosophy in a period in which both were increasingly employed by legal scholars in a variety of fields. Choper bought so thoroughly into the idea of the Court drawing from a limited pool of political capital that he advised wholesale abandonment of important lines of constitutional precedent.

A key development in the two decades of constitutional theory that followed publication of these works was the stamping out of the last remaining traces of Frankfurterian restraint. To use Lawrence Sager's categories,³ today there are some remaining "court skeptics" who draw on institutional arguments to limit the reach of judicial review.⁴ As far as I can tell, however, there are no "rights skeptics" left among constitutional scholars. Even court skeptics are not true Frankfurterians because they would all acknowledge some vital areas where rights protected by the Constitution must prevail over state interests.

So if "We the Court" has succeeded "We the People" as the chief exponent of constitutional meaning,⁵ constitutional scholars have surely played a supporting role through the theory they have generated over the past twenty years. Indeed, the 1990s saw a rapprochement between scholars and judicial review. Scholars like Barry Friedman⁶ and Rebecca Brown⁷ argued that judicial review was justified wholesale as a matter of democratic dialogue and as a pillar of the traditional constitutional order. And it was just about at this point that the Supreme Court began reviving provisions like the commerce clause and the Tenth and Eleventh Amendments as ways of restraining the federal government.

My path through the tangled wood of theories of constitutional interpretation and adjudication was a bit different. First, I was always intrigued by the point of view called "the Constitution outside the courts." I was interested in constitutional history and one of its lessons is that eighteenth and nineteenth century constitutional development was just as much influenced by the President and Congress as by the Supreme Court. I wondered what constitutional history and theory would look like if that three-branch stereoscopic view was extended to the twentieth century. Second, like a number of scholars, I found it puzzling that the kind of party-political understanding of constitutional law that was standard in political science had not made more headway in legal scholarship. Legal scholars seemed agreed that we were all realists, but it appeared legal realism had no substantial implications for constitutional theory.

The first line of inquiry led to a major theoretical problem. How can we understand the idea of constitutional development or change when the Supreme Court is not involved? One way is simply to study the instances in which the political branches advocate their own interpretations of the Constitution. This approach seemed too limited because it assimilated constitutional development in the political branches to a legal model. Might not constitutional development occur in the midst of apparently "ordinary" political change? I thought this was at least possible and so I began studying the work of political scientists who focused on fundamental changes in American political...