Constitutional Theories: A Taxonomy and (Implicit) Critique

Abstract

I am honored to have been invited to present this Madison lecture, and I want to thank my hosts, Robby George and Brad Wilson, for their hospitality and for the excellence achieved by the Madison program under their stewardship.

My charge was to present something on constitutional theory. Now, as you shall see, I do work in one corner of constitutional theory; and, of course, I believe it is the right corner to work in, and that all constitutional theorists should be working in my corner. The baleful truth, however, is that most constitutional theorists reject that claim, and this despite several articles of mine urging them to do otherwise. So, to date I have failed in my normative aspirations regarding constitutional theory. And this lecture will steer clear of preaching to the unconverted.

What I intend to do instead is to categorize the extant approaches to constitutional theory, including mine. I am going to taxonomize rather than criticize — although, I confess, some criticisms will seep through, albeit mainly implicitly.

Keywords: originalism, moral theory, political theory, modalities

JEL Classification: K10, K39