Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations
Daniel A. Farber
University of California, Berkeley - School of Law
Vanderbilt University - Law School
Daniel A. Farber and Suzanna Sherry, DESPERATELY SEEKING CERTAINTY: THE MISGUIDED QUEST FOR CONSTITUTIONAL FOUNDATIONS, University of Chicago Press, 2002
This book criticizes the trend toward foundationalism in recent constitutional scholarship. We examine in detail the work of six important figures: Robert Bork, Antonin Scalia, Richard Epstein, Bruce Ackerman, Akhil Amar, and Ronald Dworkin. Despite their very different political stances and conflicting views about substantive constitutional issues, these six writers have much in common. All of them claim the support of the original understanding; all of them argue for major changes in conventional constitutional analysis; and all of them purport to provide a determinate methodology for resolving constitutional disputes. Furthermore, all of them seek to identify a single value such as individual rights or majority rule as the foundation of their constitutional theory. We find their theories unsatisfactory in terms of normative and historical support. We also doubt that the theories could be successfully implemented by judges or other constitutional decision makers.
Each of these theorists is attempting to invent a new constitutional methodology - one sufficiently principled and normatively weighty to justify overruling legislative decisions. In different ways, each attempts to escape the countermajoritarian difficulty. In our view, however, the countermajoritarian difficulty itself has been blown out of proportion. Judicial review in some form is now widely accepted in democracies and should not be viewed as an aberration in need of special justification. The traditional common law method is muddled and imperfect, but no better substitute is on the horizon. In particular, none of the leading foundationalist theories would be a better fit with the needs of our constitutional democracy. Foundationalism is not valueless as a scholarly strategy, since it can sometimes lead to interesting and useful insights. But foundationalist approaches to constitutional interpretation should not be considered serious candidates for adoption by society.
Keywords: Constitutional law, judicial review, originalism
JEL Classification: K3, N4Accepted Paper Series
Date posted: July 24, 2002
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