Beard and Holmes on Constitutional Adjudication
Harvard Law School
January 6, 2014
Constitutional Commentary, Forthcoming
Harvard Public Law Working Paper No. 14-04
What is the connection, if any, between the external perspective of the historian or political scientist and the internal perspective of lawyers and judges? That is the puzzle for constitutional law posed by Charles Beard’s classic, An Economic Interpretation of the Constitution of the United States (1913). Beard challenges us either to reconcile our external and internal perspectives on constitutionalism, or else conceivably to declare them irreconcilable.
I begin by showing that standard approaches to constitutional adjudication – originalism and Dworkinian moralism – are resolutely internal and thus have little use for the external standpoint of Beardian scholarship. I then describe a strategy of reconciliation offered by Justice Holmes, one that connects external and internal perspectives by means of a nonideal theory of constitutional judging under political constraints. The theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match “the actual equilibrium of force in the community – that is, conformity to the wishes of the dominant power.” In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law. External Beardian scholarship helps to delineate the feasible political options or possibilities for constitutional law, a critical datum from the internal but nonideal perspective of the Holmesian judge.
Number of Pages in PDF File: 14Accepted Paper Series
Date posted: January 6, 2014 ; Last revised: March 12, 2014
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