Toward a Reality-Based Constitutional Theory
15 Pages Posted: 10 Apr 2011 Last revised: 18 Feb 2014
Date Written: April 7, 2011
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.
Keywords: Constitutional Theory, Originalism, Popular Constitutionalism, Political Science, Empirical
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