Toward a Reality-Based Constitutional Theory
University of Arizona, James E. Rogers College of Law; University of Wisconsin Law School
April 7, 2011
89 Washington University Law Review 273
University of Wisconsin Legal Studies Research Paper No. 1156
Despite the alleged triumph of legal realism and the empirical turn of closely related fields such as judicial behavior, a startling number of constitutional theorists continue to approach their work as a purely conceptual enterprise. This is particularly true of originalists, but it is true of many others as well. Indeed, much of normative constitutional theory as it is presently practiced resembles a recreational debating society more than a serious effort to improve the functioning of a massively complex modern society. If constitutional theory is to live up to its aspirations, a new reality-based approach is urgently needed. This brief essay makes the case for such an approach and offers practical suggestions for getting it off the ground.
Number of Pages in PDF File: 15
Keywords: Constitutional Theory, Originalism, Popular Constitutionalism, Political Science, EmpiricalAccepted Paper Series
Date posted: April 10, 2011 ; Last revised: February 18, 2014
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