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  • Constitutional Theory Goes to Market
  • Mark A. Graber (bio)

The state of constitutional theory is usually assessed from the perspective of a particular constitutional theory. The conclusion typically is that constitutional theorists should be paying more attention to what the author is doing and less attention to matters the author has either abandoned or ignored. Scholars who study constitutionalism outside of the courts complain that constitutional theorists spend too much time telling Supreme Court justices how to do their job and too little time critiquing the constitutional performance of other political actors.1 Devotees of law and economics insist that constitutional theory would be improved by more and better use of rational choice.2

This essay assesses the state of constitutional theory from the perspective of higher education and academic freedom. Constitutional theory in the contemporary United States is largely yoked to the fate of the academy. Studies on the nature and improvement of political orders are produced and disseminated largely in universities, colleges and university presses. When these institutions are flourishing, constitutional theory is likely to be flourishing. Constitutional theory is healthy, no matter what the particular scholarly fashions at any time, when academic environments are created and maintained in which constitutional theory is a valued enterprise and constitutional theorists are free to explore those aspects of that enterprise thought worthwhile. Themes and ideas compete for intellectual attention based on how attractive they appear to numerous persons who think contemplating questions of political design an important endeavor. Until the human intellect is perfected, misjudgments, mistaken priorities and bias will occur even in ideal speech situations. Nevertheless, when constitutional theory is valued and free, the products of such contemplating are likely to be as good in that time and place as is humanly possible.

Most commentary on academic freedom focuses on the concern that constitutional theory and related inquiries are not free, rather than on the concern that constitutional theory and related inquiries are not valued. Proponents of academic freedom are ever alert to combat pressures that may dissuade scholars in all disciplines from relying on those methods or reaching those conclusions they think best. These threats to the academic and constitutional enterprise, however, are often rooted in strong commitments to the value of academic and constitutional discourse. The greater threat to higher education and constitutional theory during the twentieth-first century is a decline in these commitments. Academic values associated with truth seeking are increasingly being subordinated to external norms associated with the university's quest for more funding. As higher education goes to market, the result is likely to be less constitutional theory and less interesting constitutional theory.

A. Censorship, Academic Freedom, and Constitutional Theory

The traditional threat to higher education and constitutional theory is pressure for conformity. Lines of inquiry that seem intellectually attractive are abandoned or not adequately pursued because persons who control academic life do not tolerate serious challenges to reigning political or scholarly orthodoxies. Constitutional and other thinkers during the 1950s too closely identified with communism or socialism risked losing their positions.3 Many conservatives complain that the academy is presently biased against constitutional thinkers who defend free markets and "traditional" values.4 Particular reviewers, departments, and disciplines are not open to any scholarship that does not rely on statistics, makes too much use of formal theory, or concludes that big business supported Hitler.5 Constitutional theory shaped by these and related pressures devolves into an exercise in discovering additional proofs for what is already known and providing additional reasons for what is already believed.

Pressures for conformity are difficult to evaluate in political or university settings when they are plausibly linked to substantive commitments underlying the policy or the academy. Just as atheists are justly denied admission to seminaries and the German constitution bans parties committed to undermining certain democratic norms, so arguably might a communist who rejects academic freedom be denied teaching positions.6 Universities are committed to norms of civility and quality. Professors should fail a paper that does no more than rant, even if such speech is protected by the First Amendment. Proponents of discrimination against homosexuals are not entitled to representation on faculties simply because many persons hold such...


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