Legal Commentary

Three Goals of a Constitutional Theory

By Orin Kerr

I wanted to follow up my recent post on Constitutional Theory Debates in a Nutshell by talking about what seems to be the core difficulty with grand constitutional theories ? that is, single overarching methodologies to construe the Constitution.

In my view, the core difficulty is that constitutional theories must satisfy three competing and often irreconcilable goals. They must: (1) Offer a single normative theory that conceptually explains and justifies some decisions and rejects others, (2) Agree with contemporary social attitudes enough that the theory can be considered ?mainstream? and therefore politically acceptable (required in a world of judges who must be nominated and confirmed), and (3) Be certain enough that does not just give judges the power to do whatever they want. 

The hard part is that these three goals often work at cross-purposes. A conceptually elegant theory might not match contemporary views. A theory that matches contemporary views might not be certain. Etc. You can readily find a theory that matches any one of these criteria, but no one has a theory that matches all three: The evolution of American society from the time of the founding, paired with the rarity of express Article V amendments, just doesn?t leave room for that. As a result, each of the theories has a weakness. For example, originalism has (1), a good measure of (3), but then misses (2). In contrast, living constitutionalism and Balkinian originalism have (2), some amount of (1), but miss (3). And following stare decisis has (2) and (3) but misses (1).

Because of these weaknesses, the debates over constitutional theory tend to fall into predictable patterns. Proponents of each individual theory criticize the other theories for failing at the goal the other theories can?t satisfy while trying to minimize attention on the goal it can?t satisfy itself. A predictable narrative follows, which is what I tried to show in my post Constitutional Theory Debates in a Nutshell.

More broadly, if you?re going to adhere to a single theory, I think you need to pick a theory based on which of the three purposes you think are more critical than others. For example, I tend to be in the camp of the stare decisis follower in part because I think problem (1) is a less serious problem than the others. Justices generally aren?t theorists, after all, and Supreme Court decisionmaking generally requires decisionmaking by committee (which would make theoretical purity unlikely even if the Justices were theorists). Because I don?t think a grand theory is realistic in a practical sense, I don?t value it as much as some others will. But that?s a decision based on values that requires picking the least bad of the options, and of course different people will disagree on those values. 

Full post as published by The Volokh Conspiracy on August 22, 2010 (boomark / email).