Academic

Dorf on Constitutional Theory

By Lawrence Solum

Michael Dorf (Cornell) has posted A Theory of the Constitution (Harvard Law Review, forthcoming 2011) on SSRN.  Here is the abstract:

Despite the rich and varied literature, there is no unified theory of the Constitution.  This article remedies this gap in the literature by offering a comprehensive and unified theory of the United States Constitution.  This theory has three ingredients: (1) a theory of constitutional content (the substantance of constitutional law); (2) a theory of constitutional process (the political and judicial methods for implementing the constitutional text), and (3) a theory of constitutional politics (the institutional constraints that shape the space of constitutional possibilities).

Part One articulates a new theory of the fundamental normative challenge facing contemporary constitutional theory.  I call this challenge, "the antidemocratic dilemma": the normative problem created when courts with the ultimate power of judicial review are given the power to nullify the actions of democratically-elected legislatures and executives.  Although the antidemocratic dilemma bears a superficial resemblence to problems noticed by Bickel, Ely, and others, the account offered here offers a deeper and more sophisticated theory of democratic accountability that unifies and transcends prior accounts.  This new account of democratic accountability is then deployed to explain and justify each of the major structural features of the Constitution.

Part Two offers a new theory of constitutional interpretation.  It begins with a critique of so-called "originalism," demonstrating that the quest for the original intentions of the framers is fundamentally misconceived because of the inherent difficulties in constructing a single intention out of the multiplicity of contradictory, partial, and inaccessible mental states of the large and heterogenous group that framed and ratified the Constitution of 1789 and the various amendments.  It then offers a novel theory of constitutional interpretation based on the premise that there exists a multiplicity of methods of constitutional interpretation, including (a) the text, (b) history, (c) structure, (d) values, and (e) purposes that constitute, justify, and provide meaning to the Constitution.  This new multiple-methods approach is then applied to several exemplary problems of constitutional interpretation.

Part Three offers a novel account of the political processes that shape constitutional doctrine both in the courts and in the political branches.  This new account transcends the conventional "attitudinalist" account in two ways.  First, it demonstrates that judicial ideology can be explained by rational choices made by judges and the political institutions that select them: I call this new game-theoretic approach "descriptive political analysis."  Second, it shows that the system of judicial politics involves complex interactions between "law" (or the system of legal texts) and "politics" (institutions that structure interaction of politically motivated actors with the system of texts).  I  call this new approach, "institutional interactionism."

"A Theory of the Constitution" concludes with by considering three case studies: (1) the constitutionality of DOMA, (2) the authority of the President to initiate armed conflict absent a direct attack on the United States or a declaration of war, and (3) the constitutionality of the individual mandate of the Affordable Care Act.  This concluding section demonstrates the capacity of new unified constitutional theory to handle each of these cases in a way that integrates constitutional content, process, and politics.

Full post as published by Legal Theory Blog on April 01, 2011 (boomark / email).