Academic

Ralston on Pragmatism & Constiutionalism

By Lawrence Solum

Shane J. Ralston (University of Maine) has posted Can Pragmatists be Constitutionalists? on SSRN.  Here is the abstract:

At the outset of the present century, a debate erupted in the pages of the journal Administration and Society over the question of whether philosophical pragmatism is compatible with the study and practice of public administration. Of the many constituent issues the contributors addressed, one that concerned several (especially James Stever, Kevin Snider and Patricia Shields) was whether Deweyan pragmatism, or the classic pragmatism of John Dewey that some contemporary philosophers subscribe to, can accommodate the commitment to constitutional government found at the heart of the administrative state tradition. In this paper, the issue is taken out of the administrative context and framed in more general terms: Can pragmatists, and particularly Deweyan pragmatists, be constitutionalists? By way of answering this question, I present three typical (though by no means exhaustive) conceptions of constitutionalism: (i) originalism (or that a constitution expresses the original intentions of its drafters), (ii) organicism (or that a constitution is a living document whose meaning changes, typically with each new generation, to reflect evolving societal values and morals) and (iii) functionalism (or that a constitution functions as an ordering device, both creating and perpetuating stable legal-political frameworks). Then, the inquiry proceeds to address whether a founding document modeled after each conception could legitimate the state's political-legal authority (for instance, to coerce its citizens) consistent with the tenets of Dewey's philosophical pragmatism. Next, I consider whether John Dewey's assessment of the ideas and achievements of one of America's renowned constitutional founders, Thomas Jefferson, are relevant to the issue of pragmatism and constitutionalism's compatibility. The paper concludes with some final thoughts about whether Deweyan pragmatists could, following John Dryzek's proposal, treat competing dialogues or discourses (and counter-discourses) as proxies for constitutions, understanding them both as repositories of a community's traditions and norms (Aristotle) and mechanisms for fairly distributing public goods (Stefan Voigt).

Full post as published by Legal Theory Blog on January 07, 2009 (boomark / email).