Constitutional Theory in a Nutshell

Article excerpt

I. WHY THEORY? ................................................ 57

II. Who Interprets the Constitution? ............................. 60

III. WHAT IS THE CONSTITUTION? ................................... 68

IV. HOW TO INTERPRET THE CONSTITUTION? ........................... 93

V. LIBERAL THEORY ............................................. 105

VI. CONSERVATIVE THEORY ...................................... 108

VII. FEMINIST THEORY ........................................... 112

VIII. CRITICAL RACE THEORY ..................................... 114

IX. POSTMODERN THEORY ........................................ 116

X. DOES THEORY MATTER? ....................................... 118

The ubiquitous and popular West Nutshell Series promises to deliver in each and every volume "a succinct exposition ofthe law to which a student or lawyer can turn for reliable guidance" published in "a compact format for convenient reference."1 That is the purpose and function of this article: to provide the intelligent novice a beginner's guide to the considerable body of scholarly writings about the theory of American constitutional law.

I. WHY THEORY?

Why not? Sorry, it is a professor's habit to answer a question with a question. But then again, this article is all about trying to make some sense of a peculiar dialect of legalese that might be called "con law prof talk," which you will encounter in class discussions or out-of-class readings in treatises and law reviews. When your professor mentions or you read references to "neutral principles" or "originalism" or "constitutional moments" or "countermajoritarian difficulty" or "civic republicanism" or "hermeneutics" or "illegitimate hierarchies" or "social constructs" or "anti-essentialism" or "postmodern epistemology," do you have a clue? You definitely need to get one, if you go to a fancy law school or if your professor did - and that would include just about every law student in the United States. This article will help.2

Constitutional law is a challenging subject to master for several reasons.3 First, it is so important, and has been so instrumental in shaping our nation's history. Second, while it is an American invention, as a nation we have been reinventing constitutional law over the last two centuries. Third, the Supreme Court of the United States is an inscrutably fascinating institution made up of an odd cast of characters. Fourth, there is so much material when we contemplate over five hundred Talmudic volumes of United States Reports filled with majority, concurring, and dissenting opinions, which are augmented by an endless scholarly commentary. Fifth, each October Term there are new decisions that elaborate, revise, and sometimes overrule our past understandings. Sixth, constitutional law resembles a kind of civic religion that has transcendent and immanent qualities for our national political life. This is tough law, tough to teach, tough to learn, and tough to master.4

Constitutional theory helps us to overcome this difficulty and master our subject. It helps us to understand Supreme Court decisions and helps us to cope with the elaborate and often conflicting opinions of the Justices. It allows us to distinguish between a good argument and a bad argument. Constitutional theory helps us to understand where an argument is coming from and where it might take us. It helps us to see the big picture. We better understand how a doctrine came to be and how it might evolve. We see how different doctrines are related and how they fit into the overall organization of constitutional law. Constitutional theory allows us to talk about our subject with each other. It is the patois that constitutional law professors write and speak to other professors and to their students. Thus, if we manage to gain some perspective from the vantage of constitutional theory, we will better understand constitutional law. …