This book is about the philosophical grounding of modern constitutional theory; more particularly, it is an extended discussion of the theory behind judicial review. Why, I will ask, should today's elected officials be bound by words of a document written more than two centuries ago as interpreted by nine unelected judges? Each of the five theories I discuss -- original intent, democratic proceduralism, utilitarianism, Critical Legal Studies, and democratic contractualism -- is described and evaluated in terms of its philosophical commitments as well as its (sometimes only implicit) vision of the justification of judicial review and the nature of constitutional interpretation. Although three of the interpretive theories -- original intent, democratic proceduralism, and Critical Legal Studies -- are familiar, at least in broad outline, to legal theorists, less attention has been paid to the philosophical assumptions and arguments on which each rests. Utilitarianism and contractualism, on the other hand, are well-developed and familiar political theories, but their implications for our understanding of judicial review and constitutional interpretation have heretofore not been fully explored. The book's central purpose, then, is to weave together political philosophy and legal theory by showing how disagreements among various theories of constitutional interpretation depend on deeper, philosophical disputes about the purposes of judicial review and the justification of democratic government itself.
Many individuals and institutions have provided valuable help to me in writing this book. I first became interested in questions of constitutional interpretation while attending a National Endowment for the Humanities (NEH) seminar directed by Walter Murphy in 1983 at Princeton University. I later was lucky enough to get a Law and Liberal Arts Fellowship at Harvard Law School, where I first began working seriously on the manuscript. Most recently I attended another NEH seminar, this one directed by Robert Audi at the University of Nebraska, where I completed the project. Many people have therefore contributed to its development -- some wittingly and some not. I especially want to thank Lew Sargentich, director of Harvard Law School's Law and Liberal Arts Program, for extending my stay at the law school for a second year. Lew's considerable philosophical and legal abilities were also a real benefit to me in the early stages of the book. Others to whom I wish to express special thanks are Robert Audi, Paul Finkelman, Mel Leffler, Frank Michelman, Jim Montmarquet, Richard Nunan, Richard Parker,