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  • The State of Constitutional Theory in U.S. Law Schools in the 2000s
  • Mark Tushnet (bio)

For a period running from the late 1960s to the early 1990s, constitutional theory in U.S. law schools dealt almost entirely with constitutional interpretation by the courts. Legal scholars' obsession with interpretive theory arose from the political circumstances of their scholarship. Conservative legal activists cast their challenge to the Warren Court's liberal decisions not (simply) in terms of disagreement with the results, but in terms of the illegitimacy of the interpretive techniques the Warren Court used. According to conservatives, the only method of constitutional interpretation that could confer legitimacy on the Court's decisions was one that focused almost entirely on the original meaning or understanding of the Constitution's words.1 The Warren Court (and then the Burger Court, to their dismay) did not follow the conservatives' prescription.

Liberal constitutional theorists developed two responses to the conservative challenge.2 First, they directly took originalism on. One popular argument was that originalists could not provide a decent account of how the understandings held by individuals were aggregated into a single understanding that later courts could apply. Another was that originalist examinations of particular provisions were typically extremely simple-minded, of a sort derided by historians as "law office history." The liberals were attracted to the argument that serious examination of the framing era disclosed an extremely complicated intellectual universe, riven by serious conceptual disagreements that went to the proper understanding of particular constitutional provisions. In light of those disagreements, liberals said, there simply was no original understanding that later courts could apply. A third popular response to conservative originalism emphasized the impossibility of directly applying original understandings to changed circumstances. Instead, liberals argued, courts today should invoke the values that underlay the Constitution's provisions to see how contemporary statutes measured up against those values.

The liberals' second response to conservative originalism was to develop alternative interpretive approaches that, they argued, made judicial decisions legitimate. Two such approaches were particularly attractive. The first was John Hart Ely's revival and rearticulation of the "Carolene Products footnote 4" approach. Under that approach, courts were to identify and rectify obstructions in the processes of democratic representation, and then stand aside. According to Ely, this approach reconciled vigorous judicial review — within its proper domain — with democratic self-governance, by using the courts to purify the processes of democratic representation without supervising the outcome of truly democratic processes. The second popular approach was Ronald Dworkin's invocation of moral and political philosophy to interpret the Constitution's rights-protecting provisions, which, after all, did use terms familiar to philosophers.

The disputes between the liberals and the conservatives became increasingly arcane. Conservatives acknowledged that some constitutional provisions were understood when adopted to refer to somewhat abstract rights, but criticized liberals for manipulating the level of generality on which they interpreted those provisions and rights. They modified their position to deal with the problem of aggregation, but claimed that revised originalist approaches remained plausible. Liberals acknowledged that American political traditions required recourse to some sort of originalism to justify judicial interpretations, but insisted that such recourse need not be as rigid as conservatives insisted.

Eventually the fights over originalism petered out in the law schools, though they remained important in the rhetoric of conservative political activists who focused on the courts. Conservatives discovered that the Rehnquist Court did well enough by their lights without adopting a purely originalist approach, and indeed did so by deploying some of the techniques conservatives criticized when liberals used them.3 The legal academy generally concluded that there was something wrong with an analysis that led to the conclusion that essentially all of the Supreme Court's work in the twentieth century, if not before, was somehow illegitimate. It was hard to say that the Court's decisions lacked democratic legitimacy in a world where the Court's decisions were routinely endorsed by the American public. In the end, constitutional theorizing in U.S. law schools about constitutional interpretation ended with the acknowledgement that the Court in fact deployed a number of interpretive approaches, and properly so. Originalism of some sort — at least...


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