Nelson Dordelly Rosales is researching on common themes between Dworkin & Barack.
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Ronald Dworkin is Professor of Jurisprudence at Oxford, and the author of Taking Rights Seriously and Law's Empire.
Below is a McGill Book Review:Law's Empire by Ronald Dworkin
"Rejecting the view, widely held among legal theorists, that judges create law rather than merely interpret it, Ronald Dworkin insists that for every hard case there is one right answer: the one that fulfills the obligation of the community to treat its members in a coherent and principled manner.
Examining cases from common law, statute law, and American constitutional law, Dworkin formulates guidelines for finding that elusive right answer. The right interpretation, he concludes, should try to incorporate the virtues of justice, or moral justifiability; fairness, or respect for the expressed will of the majority; and integrity, or adherence to principled consistency rather than capriciousness.
The author’s notion of integrity requires that judges steer between the two extremes of a slavish adherence to the letter of existing law, on the one hand, and an arbitrary disregard for all legal precedent, on the other. Judges’ decisions, therefore, must be constrained by precedent even as they adapt the law to new situations. Dworkin ascribes to other legal theorists a cavalier indifference to precedent; in doing so, he comes perilously close to setting up a straw man.
With regard to questions of constitutional law, Dworkin tries to chart a middle course between a too-meddlesome judicial activism and the passivism favored by American conservatives. Judges, the author asserts, intervene rightly when they preserve a principle by overruling laws that violate individual rights; they intervene wrongly when they interfere in matters of policy. Unfortunately, Dworkin’s sharp theoretical distinction between policy and principle can easily become blurred in real life.
Although LAW’S EMPIRE is difficult for the average reader to plow through, it is no more difficult than it has to be. Specialized legal terms, and ordinary words used in a special way, are carefully defined. The author makes deft use of homely examples and illuminating analogies to clarify his more complex arguments. The explanatory footnotes provide a mine of bibliographical information; the index is also useful.
Dworkin’s abstract, tightly reasoned work will appeal chiefly to scholars in the fields of legal and political philosophy rather than to the general reader. The author has provided a nourishing broth for all those who are hungry for intellectually challenging argumentation."
Retrieved May 6th, 2009 from
http://www.enotes.com/lawsjavascript:void(0)-empire-salem/laws-empire
Asking better questions: the problems of constitutional theory. by Mark A. Graber (1993)
Recently, some members of the public law subfield have begun exploring American constitutionalism in ways that may sound strange, if not perverse, to the uninitiated. Panels and papers are devoted to such topics as What is the Constitution? and Can there be unconstitutional constitutional amendments? Although confusing to some academics, these novel approaches to standard academic pursuits are also opening new lines of scholarly inquiry and unearthing doubtful assumptions that have gone unchallenged for too long. By laying out the new questions that political scientists are asking and could ask about constitutional theory, this paper may provide a guide for the perplexed and directions for future research.
Throughout most of the twentieth century, the question, How should judges interpret the Constitution? was the central focus of constitutional theory. This inquiry conflated at least two distinct issues and, in so doing, ruled out legitimate constitutional possibilities. Because legal commentators failed to discriminate between theories about what the Constitution means and theories about how a particular institution, the judiciary, should resolve constitutional controversies, they normally assumed without question that the fundamental principles of the Constitution are judicially enforceable and that the judiciary is the authoritative interpreter of the Constitution.
In 1986, Walter Murphy, James Fleming, and William Harris offered a more self-conscious approach to constitutional theory. Although nominally a student coursebook, their American Constitutional Interpretation attempted to change the way scholars conceptualized that subject. Rather than "focusing on legal doctrine," Murphy, Fleming, and Harris (1986, v) analyzed "the enterprise of constitutional interpretation." Their study recognized that the standard inquiry of constitutional theory, How should judges interpret the Constitution? obscured three distinct questions: What is the Constitution that is to be interpreted? Who are the Constitution's authoritative interpreters? and How can/should/do these interpreters accomplish their tasks? (1986, 9). By thinking about constitutional theory in this way, their readers could consider the possibility that some important constitutional values are not judicially enforceable and that other branches of government frequently determine what provisions of the Constitution mean.
This paper builds on the seminal efforts of Murphy, Fleming, and Harris. Although indebted to their analysis, I believe the questions they asked are slightly flawed and, more significantly, do not exhaust the potential of constitutional theory. The who question in American Constitutional Interpretation is too narrowly conceived. Constitutional theory should detail all the roles that different political actors play and not merely identify authoritative constitutional interpreters.(1) Moreover, constitutional theory poses significant when, which, whose, and why questions. Murphy, Fleming, and Harris briefly note the first two inquiries (1986, 4-9, 1174-76), but omit the others. As a result, important problems remain underexplored both in their work and in public law scholarship.
Constitutional Theory's Questions
How should the Constitution be interpreted? Most works on constitutional theory offer interpretive strategies designed to elucidate the meaning of various constitutional provisions. Although legal commentators frequently present their theories of constitutional exegesis in the guise of theories of judicial review, cursory examinations reveal that most law professors share a common understanding of the appropriate judicial role in constitutional cases. Proponents of "judicial activism" and "judicial restraint" agree that the function of the federal judiciary is to interpret the Constitution. Following Chief Justice John Marshall (1803, 177), contemporary jurists claim that "it is emphatically the province and duty of the judicial department to say what the law is." Recent constitutional debates are, thus, almost entirely over "what the law is" than "it is the duty of the judicial department to say."
Differences in late twentieth-century constitutional theories and theories of the judicial function stem from different methods of constitutional interpretation. Some commentators advocate interpretive approaches that allow the meaning of the Constitution to change over time. Ronald Dworkin (1985, 388) claims that the Supreme Court correctly considered "America's growing sense that racial segregation was wrong in principle" when deciding how to interpret the equal protection clause in Brown v. Board of Education (1954). Others insist that the meaning of the Constitution can never change. Robert Bork (1990) maintains that constitutional clauses always mean what their words meant when they were originally adopted.(2) More generally, Philip Bobbitt (1981) identifies six different methods--historical, textual, doctrinal, prudential, structural, and ethical--which different jurists claim provide legitimate bases for interpreting the Constitution. Analysis of these "constitutional modalities," he claims, is the proper subject matter of constitutional theory.
What is the Constitution? Before scholars can interpret the constitutional text, they must establish what texts comprise the Constitution. This what question captures the important theoretical difference between debates over whether the preamble, the Declaration of Independence, previous judicial opinions or American political traditions are among the texts that constitutional theorists must interpret, and debates over how those texts should be interpreted. Recent scholarship on the nature of constitutional amendments further highlights the distinction between the how and what of constitutional theory. Bruce Ackerman (1984, 1989, 527-36) claims that the Constitution includes a number of "structural amendments" that were not passed in accordance with the procedures prescribed by Article V, and that, properly interpreted, the structural amendments that were incorporated into the Constitution during the New Deal justified the Supreme Court's decision to declare school segregation unconstitutional.
The what of constitutional theory can be divided into several subquestions. The first concerns the problems inherent in specifying the contents of the original Constitution. The text that was ratified in 1787 might have included only Articles I through VII, but the framers might be understood as having incorporated certain eighteenth-century political practices and principles into the Constitution. Analogous issues arise when scholars attempt to establish the content of the Constitution in 1991. Some commentators believe that Article V states the conditions that all constitutional amendments must satisfy, but others (Llewellyn 1934; Grey 1975; Nagel 1989; Levinson 1988) assert that certain long-standing political practices or principles can gradually obtain constitutional status. Constitutional theorists must also determine what parts of the original Constitution have been altered by subsequent amendments. On one interpretation, the Twenty-First Amendment merely rescinded the Eighteenth Amendment. From another point of view, the repeal of prohibition weakened previous constitutional principles that supported governmental regulation of other private activities.
The what question concerns the essence of the Constitution as well as its totality. Some provisions may be essential to a text being a constitution. Scholars suggest that constitutions establish "the mechanics of institutional arrangements and of the political process" (Bickel 1975, 29), represent the "conscious formulation by a people of its fundamental law" (McIlwain 1947, 3), or proclaim restrictions on governmental power that establish "a system of protected freedom for the individual" (Sartori 1962, 854). Under the latter definition, if the American people chose to repeal all constitutional limits on state power, then what remained would no longer be a constitution. Moreover, some constitutional provisions may define the particular character of the Constitution of the United States. The Constitution could be so drastically amended as to become a radically different text from the one that currently governs American life. Indeed, Murphy (1980, 754-57) and Sotorios Barber (1984, 43) claim that such values as free speech and political equality are so intrinsic to American constitutionalism that any effort to use Article V to introduce inconsistent amendments would be unconstitutional.
Who is obligated to interpret or obey the Constitution? Only those persons obligated either to interpret or to obey the Constitution need take more than an academic interest in what texts constitute the Constitution and how those texts should be interpreted. The most controversial dimension of the who question concerns the existence and identity of an ultimate constitutional interpreter. From the Virginia and Kentucky Resolutions (Madison 1973, 297-349; Jefferson 1975, 281-89) to Edward Meese's (1987) attack on Cooper v. Aaron (1958), Americans have debated whether a particular institution, usually the Supreme Court, should have the authoritative power to define what the Constitution means. Some thinkers suggest that various provisions of the Constitution have different final interpreters. Thomas Jefferson (1975, 281, 563) maintained that each state had the right to determine the constitutionality of national laws that interfered with previously existing state powers, and that each branch of the national government "had an equal right to determine for itself what is the meaning of the Constitution in the cases submitted to its action." Levinson (1988, 46-50) observes that important strands of American political thought deny the existence of any authoritative constitutional interpreter and consider all persons obligated to obey the Constitution as having the right to determine the substantive content of their obligations.
A complete constitutional theory must spell out the roles that other persons and institutions play in the constitutional hierarchy. Various persons may have a duty to interpret the Constitution, even though their conclusions are only provisionally authoritative. Barber (1984, 5-7) insists that federal district judges should ground their opinions on their best understanding of constitutional principle, even though their decisions may be overruled by the Supreme Court. Some persons may have no duty to interpret the Constitution, but be obligated to respect constitutional norms prescribed by others. State officials, Joseph Story (1987, 689-90) maintained, were "under a solemn obligation to obey the Constitution," but he thought the federal judiciary should establish the content of their constitutional responsibilities. Finally, many persons are obligated neither to interpret nor to obey the Constitution. Citizens of foreign countries are an obvious example, but native-born Americans may similarly have no duty to adhere to constitutional standards if they have not explicitly consented to that text's authority.
The who question also concerns the relationships between authoritative constitutional interpreters and those persons obligated to obey their constitutional commands. Constitutional theorists need to consider which utterances of an authoritative constitutional interpreter other persons must respect. Political actors might have a duty to obey every statement made by the relevant constitutional authority, all statements specifically directed at them, or only those statements intended to resolve conflicts to which they are a party. Scholars may also explore what political actors should do in the absence of an authoritative constitutional command. Such persons might be obligated either to anticipate an authoritative interpreter's ruling or to rely on their best interpretation of what the Constitution means. Indeed, some persons who must obey the constitutional edicts handed down by the authoritative interpreter may have no responsibility to adhere to constitutional standards before that authority has spoken.
When (and where) are persons obligated to obey the Constitution? A person's obligation to interpret or obey the Constitution may be limited to certain times, places, or circumstances. Jefferson (1975, 448) maintained that the authority of any Constitution automatically expired after 19 years. There is a long-standing debate in American law, epitomized by The Insular Cases (e.g., Downes v. Bidwell 1901), over whether federal officers must respect constitutional limitations when legislating for United States territories. In Korematsu v. United States, Justice Jackson's (1944, 244-48) dissent suggested that, during certain crises, some political officials may justifiably ignore the Constitution.
The when question has constitutional, contra-constitutional, and extra-constitutional dimensions. The Constitution may declare when some or all of its provisions are in force. Article VII recognizes that no one was obligated to interpret or to obey the Constitution before nine states ratified it. Persons who insist that the Constitution is not "a suicide pact" may mean that, properly interpreted, the Constitution authorizes national officials to violate constitutional liberties whenever their exercise poses grave risks to the nation. Of course, the Constitution's declaration of its authority does not necessarily establish personal duties to interpret or obey that text's commands. If one generation cannot bind another, then all constitutions automatically expire after approximately 19 years, even those that assert otherwise. Moreover, there may be circumstances where no legitimate method of constitutional interpretation clearly establishes whether the Constitution's provisions have been or can be suspended. The Constitution has no clause that explicitly declares its status after the United States has been conquered by a foreign invader. If able to regain their independence, Americans might have to look outside the Constitution (even if the Constitution is not deemed identical to the "text") for criteria that would establish whether the Constitution still governs their polity.
The problems presented by foreign conquest suggest the possibility that persons may be obligated to interpret or obey the Constitution only when experience does not falsify the factual presuppositions that make the Constitution and its provisions meaningful. Ian Shapiro (1990, 38) argues that all political theories are based on certain empirical assumptions. Constitutionalism, presumably, should not be an exception. Hence, constitutional commands may make sense only in the particular physical, social, and political environments assumed by the framers of constitutional texts. Article V's guarantee to each state of "equal Suffrage in the Senate" may be premised on the assumption that California will not fall into the ocean after an earthquake or become uninhabitable after a nuclear war.
Changing social circumstances may also create constitutional contradictions. The original Constitution protected certain private property rights but gave Congress the power to regulate any activity that affected the national economy. In the twentieth century, persons can reasonably claim that virtually all exercises of private property rights affect the national economy. This observation indicates a possible inconsistency between constitutional property rights and the constitutional powers of the federal government.(3) Some scholars believe that the Constitution resolves this apparent contradiction. The various values of the Constitution, they claim, can be ordered. When they conflict, the higher ranking value trumps the lower ranking one. Barber (1984, 131-33, 145) argues that the Roosevelt Court correctly subordinated due process private property rights to the federal commerce power during the late New Deal. An alternative position, rarely considered, is that the 1933 Constitution did not rank order the federal commerce power and private property rights, at least to the extent that one could absolutely obliterate the other. Rather, the theory underlying the pre-New Deal Constitution was based in part on the empirical assumption that there were some private property rights whose exercise never affected the national economy. When the creation of national markets falsified this presupposition, particular provisions of the Constitution no longer made sense. During the Depression, political actors could not obey the Constitution because that text issued inconsistent commands. Americans, thus, were forced either to amend the Constitution(4) or use extra-constitutional principles to resolve the contradiction between the constitutional rights of private property owners and the scope of the federal commerce power.
Which controversies does constitutional theory resolve? Persons obligated to interpret or obey the Constitution need only do so when resolving controversies governed by constitutional principles. The Constitution obviously proffers answers to questions about the structure of American government and the existence of certain legal rights and duties. Neither Jonas Salk nor Julia Child, however, is obligated to consult the Constitution in their ordinary line of work because that text does not settle most medical or gastronomic disputes. The Constitution may, however, claim authority over certain nonlegal disputes. Indeed, that text may be a blueprint for a particular political regime. Although the Constitution may give citizens the legal right to enjoy a wide variety of lifestyles and state officials the legal right to establish a wide variety of economic and social institutions, Americans can still debate which of those lifestyles and institutions best express and advance constitutional ideals. Justice Douglas's assertion in Zorach v. Clauson (1952, 313) that "we are a religious people whose institutions presuppose a Supreme Being" suggests that the citizen contemplated by the Constitution would acknowledge divine authority even though the First Amendment does not permit government to use law either to enforce or promote particular religions beliefs.
A complete constitutional theory would, of course, settle every constitutional controversy. In practice, none do. As Robert Dahl (1989, 109) recognizes, no "normative theor|y~ ... furnish|es~ completely unambiguous answers for every concrete situation in which a choice has to be made between alternative proposals." Just as a party system divided on economic issues may be a poor vehicle for resolving conflicts over abortion (Sundquist 1983, 441-42), so a conceptual scheme developed for resolving economic issues may be of little use in abortion controversies. Hence, like political party organizers, scholars must establish priorities among the various issues that constitutional theory resolves. Some constitutional controversies necessarily occupy their attention at the expense of others.
Recent developments in normative analysis accent the importance of the criteria used to establish priorities among constitutional controversies. Many contemporary philosophers insist that persons do not and should not theorize merely by deriving particular conclusions from general first premises. John Rawls (1971, 20-21, 48-51) and W. V. O. Quine (1961, 42-46) maintain that philosophers typically adjust both their general principles and their intuitive understandings of particular results in order to achieve the best possible fit. Ronald Dworkin (1986, 65-72) claims that theorists begin with a series of established paradigms and then seek to develop the best explanations for why those paradigms might be right. One's commitment to those paradigms may be weakened in what Dworkin calls the "post-interpretive phase," but he maintains that speculation both begins and ends with particular conclusions.
If constitutional theorists are occasionally willing to adjust their general principles to accommodate their particular political commitments, then their choice of paradigmatic problems will influence their conclusions. Twentieth-century developments in academic law indicate that theorists who begin from the premise that Lochner v. New York (1905) was wrongly decided reach different conclusions than theorists who begin from the premise that Brown v. Board of Education (1954) was correctly decided (Shapiro 1983), and these conclusions, in turn, differ from those of theorists who begin from the premise that constitutional theory must clearly explain whether women have a right to abortion. While not conclusive, this observation suggests that the methods by which contemporary constitutional theorists establish priorities among constitutional controversies must be analyzed with the same rigor given to other more explicit foundations of constitutional debate.
Whose interpretation of constitutional controversies should constitutional theory adopt? Before resolving a constitutional controversy, constitutional theorists must interpret the underlying social practice whose constitutionality is being challenged. The variety of amicus briefs submitted in recent abortion cases illustrates that a regulation can be understood as raising different constitutional issues, even by persons who agree that the regulation is unconstitutional. While these various perspectives frequently reflect only the division of labor among partisans of one position, they may stem from more substantive disagreements. Although prominent legal feminists support the result of Roe v. Wade (1973), many strenuously object to assertions that abortion restrictions violate privacy rights. Catharine MacKinnon (1987, 93-102) and Robin West (1988, 67-70) maintain that privacy reifies male ideology. Properly interpreted, they declare, state policies that limit access to abortion unconstitutionally discriminate against women.
The ultimate resolution of debates over the interpretation of political controversies may determine the underlying constitutionality of social practices. MacKinnon (1987, 93, 251) insists that statutes denying medical payments for indigents seeking abortions are unconstitutional only if such policies are interpreted as violating the equal protection rights of women. States, she claims, must offer the same support to male and female medical needs, but ordinarily have no financial obligation to subsidize private activities. The criteria used to determine how social practices under constitutional attack are characterized is particularly important in light of the different treatment currently given to claims of economic rights and violations of civil liberties. A statute banning the eating of bacon would probably be considered constitutional if conceptualized as a health regulation, but unconstitutional if conceptualized as an effort to enforce Jewish dietary laws.
Such disputes over the interpretation of social practices need not be resolved extra-constitutionally. Properly interpreted, the Constitution may provide standards that enable constitutional authorities to choose between conflicting perceptions of constitutional controversies. A complete theory of equal protection may determine what constitutes gender discrimination and when the state can discriminate on the basis of gender. These two inquiries are not analytically distinct. Implicitly or explicitly, most theorists probably seek a reflective equilibrium between their interpretation of social practices and their interpretation of constitutional standards. Persons may perceive certain statutes as discriminatory in part because they think such policies should be unconstitutional.
The whose question also concerns the perspectives that different constitutional interpreters should adopt when resolving constitutional controversies. The standard of constitutional decision making may depend on the status of the constitutional authority. James Bradley Thayer (1893, 144) and Thomas Cooley (1890, 68) insisted that because of their different roles, legislators and judges ought to adopt different principles of constitutional interpretation. In their opinion, a legislator might vote against a measure for constitutional reasons, yet after "being subsequently placed in the bench..., may find it his duty, although he has in no degree changed his opinion, to declare it constitutional," because, in his opinion, the constitutionality of the measure was "open to rational question." Paul Brest (1975) suggests that even if judges cannot examine legislative intention (a point he does not concede), legislators still have a constitutional duty not to vote for statutes that they believe are designed to disadvantage racial minorities.
Why interpret or obey the Constitution? The answers to the how, what, who, when, which, and whose of constitutional theory partially depend on the reasons why the Constitution should be interpreted. The why question historically has concerned whether any interpretive strategy is necessary to establish what the Constitution means. Many framers thought that all readers should be able to understand the meaning of a properly constructed Constitution without any extrinsic aid (Powell 1985, 88-94). Most contemporary scholars, however, treat "plain meaning" or formalistic approaches as particular interpretive methods (e.g., Levinson and Mailloux 1986). Hence, the traditional why question is better conceptualized as one possible answer to the how of constitutional theory.
Assertions that texts must be interpreted to establish their meaning do not explain why any particular text should be interpreted. The Bible, Plato's Republic, the American Political Science Review, or "Doonesbury" might offer more superior insights than the American Constitution into the controversies that concern constitutional theory. Indeed, constitutional theorists might better resolve such issues as abortion, affirmative action, and the death penalty by methods other than textual interpretation. A society might benefit more if majority vote, moral philosophy, prayer, or astrology were used to settle all political debates.
Of course, some persons use constitutional rhetoric for purely tactical or instrumental purposes. Given the nature of American political and legal discourse, efforts to promote particular policies are more likely to be successful if their justifications can be couched in constitutional terms. Although Mark Tushnet (1981, 424-26) thinks that no interpretation of a liberal constitution can be intrinsically better than any other, he admits that as a judge he would publicly assert that the Constitution requires governmental officials to implement the socialist reforms he believes superior to the current practices of the American welfare state.
Some scholars, however, insist that there are noninstrumental or "objectivist" (Powell 1986, 925) reasons for interpreting the Constitution. Persons honestly committed to interpreting the Constitution, they claim, must be prepared to confront the possibility that the text's commands may not serve their interests or advance their vision of the good society. Barber (1984, 13) argues that "the Constitution has a meaning independent of what anyone in particular might want it to mean."
This possibility, indeed near certainty, that constitutional government may not be consistent with a theorist's vision of the good society raises the fundamental issue of constitutionalism, its virtues as a political philosophy. Given that the Constitution purports to allocate fundamental social rights and obligations, scholars must consider why persons should obey that text when its requirements conflict with other sources of obligations. One important strand of American political thought denies that constitutional claims outweigh religious or moral duties. William Lloyd Garrison (1966/1832, 55-57) insisted that slavery ought to be abolished because it was morally abominable, even though he thought the practice was protected by the Constitution. To paraphrase his fellow abolitionist Henry David Thoreau (1975, 111), "must the citizen |legislator or judge~ ever for a moment ... resign his conscience to the |constitution~? Why has every man a conscience, then?"
More Questions
Seven questions seem sufficient. In fact, the questions constitutional theorists might ask can be multiplied endlessly. The American Constitution, after all, is only one of many constitutions that scholars may analyze.(5) A complete constitutional theory would ask, How should any constitution be interpreted? and How should the (American/West German/ Nigerian/...) Constitution be interpreted? This increases the number of questions constitutional theory asks to seven times |the number of national constitutions plus one~. Moreover, constitutional theory is not limited to the study of national constitutions. Late nineteenth-century treatise writers (e.g., Cooley 1890) emphasized the construction of state constitutions. Indeed, the subject might also incorporate analysis of the constitutions of such private groups as a local booster association.
This broadening of constitutional theory raises issues about the relationship between general questions about all constitutions and questions about particular constitutions. Constitutionalism may merely refer to a set of practices which bear a family resemblance to each other, but have no single element in common. Hence, the answers to more general questions about constitutions may not adequately resolve how a particular constitution should be understood. Scholars may have to examine the unique features of the American Constitution to determine whether that text means what its framers intended it to mean. On another view, all constitutions may have certain essential features. These features determine the answers to every general question about constitutions, and these answers, in turn, provide the major premises used to derive the answers to every question about particular constitutions. Of course, answers to questions about American constitutionalism may not be identical to answers to questions about West German constitutionalism. Even if the original intentions of their framers establish the criteria for interpreting all constitutions, the framers of different constitutions may have had different intentions both as to how specific provisions should be implemented and to how constitutional interpretation should be carried out.
The number of questions constitutional theory asks increases even if one restricts that subject to American constitutionalism. The how, what, who, when, which, whose, and why of constitutional theory are inter-related. Answers to one question structure answers to the others. The how and what of constitutional theory, for example, are partially functions of the who question. If all citizens are obligated to interpret the Constitution, then constitutional interpretation should be something that the average (constitutionally alert) citizen is able to do. Thus, where possible, constitutional debate should be over the plain meaning of texts readily accessible to most persons, rather than over the precise meaning of eighteenth-century words or the latest fad in continental literary theory. Similarly, if the answer to the why question is that persons should interpret the Constitution because that text embodies the compromises that enable people of different beliefs to live together, then the answer to the whose question may be that constitutional theorists ought to perceive constitutional controversies the way that ordinary citizens do.
The apparently infinite number of questions that constitutional theorists can ask belies suggestions that their field has been exhausted, that new theorists can merely play variations on themes that others have previously introduced. Work has just begun on the what and who of constitutional law. There is almost no scholarship on the when, which, whose, and why questions. The waters of constitutional priorities, virtues, empirical presuppositions, and perspectives are largely uncharted. Of course, scholars who explore these issues may eventually conclude that the Constitution only includes the generally accepted text, that judges are the authoritative interpreters of that text, that constitutional theory has no empirical presuppositions, that there are no constitutional ideals, and, more generally, that legal commentators have already analyzed the various problems presented by constitutionalism. We should not abandon constitutional theory, however, until research has actually ruled out these constitutional possibilities. Only by asking better questions can constitutional theorists hope to offer better answers.
Notes
* The author thanks Brian Roberts and Julia Frank for significantly improving the logic and coherence of this paper.
1. Although I tinker with American Constitutional Interpretation's how and what questions, the text does not offer any substantial improvements on the manner in which Murphy, Fleming, and Harris presented these problems.
2. Murphy, Fleming, and Harris see the problem of constitutional change as part of the what of constitutional theory. Under that heading they ask, "is 'the Constitution' unchanging in its meaning except insofar as it is formally amended?" (Murphy, Fleming, and Harris 1986, 10). This conflates two distinct questions. First, does the Constitution include amendments not passed in accordance with the rules laid down in Article V? That inquiry is a what question. Second, in the absence of amendment, can the meaning of the Constitution change? This is a function of the method persons use to interpret the Constitution and, hence, part of the how question.
3. There may also be an inconsistency between the federal commerce power and the Tenth Amendment if one reads the Tenth Amendment as giving states exclusive power to regulate at least some aspects of economic life.
4. Ackerman (1984, 1051-57) argues that the 1936 election and subsequent events should be understood as a structural amendment eliminating any constitutional doubt about federal power to regulate the economy.
5. Though none of the casebooks in my office discuss foreign constitutions or cases, most have such general titles as Constitutional Law.
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About the Author
Mark A. Graber is an assistant professor of government at the University of Maryland at College Park. He is the author of Transforming Free Speech (California, 1991), Equal Choice (forthcoming), and several articles on American constitutional politics and theory. He is presently working on a political history of judicial review.
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