Critical Constitutionalism Now

Abstract:     
The starting point for this essay is the claim that if the texts that critical scholars studied are unstable over time, then this must also be true of the studies themselves. There is no reason to suppose that the critical perspective, uniquely among all possible perspectives, reflects timeless and contextless truth. The question I want to ask, then, is what meaning the critical perspective has for us now in our new and dramatically transformed environment. I proceed in four parts. First, I address the meaning that critical scholars attributed to constitutional law in the late twentieth century. Second, I describe some of the features of the situation that produced this meaning. Third, I describe salient features of the current constitutional situation and how it differs from the situation from which critical constitutionalism emerged. Finally, I offer some suggestions for what critical constitutionalism means today.

Keywords: constitution, critical theory, separation of powers, critical legal studies, Bush administration

Accepted Paper Series