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Constitutional Pragmatism, the Supreme Court, and Democratic Revolution

Mark Kende

Drake University Law School

November 19, 2012

Drake University Law School Research Paper No. 12-36
Denver University Law Review, Forthcoming

Constitutional pragmatism is under-theorized and frequently misconceived. Most constitutional interpretation discussions focus on originalism or some form of “living constitutionalism.” The irony is that the U.S. Supreme Court’s failure to adopt any single foundational constitutional theory makes pragmatism the best descriptive characterization of the Court, as Mark Tushnet has suggested. Yet, Judge Posner, Daniel Farber, and Justice Breyer certainly do not agree on what pragmatism means. This symposium paper illuminates this poor step-child in constitutional theory by providing a typology of a dozen strands of constitutional pragmatism. The paper looks at U.S. Supreme Court cases and some historical events to support this framework. For example, certain types of constitutional pragmatism do not rule out the use of fundamental moral principles in constitutional interpretation, nor are these approaches all about consequences. The paper also shows how the U.S. Revolution, and some other successful constitutional revolutions, required surprisingly pragmatic influences.

Number of Pages in PDF File: 37

Keywords: pragmatism, constitution, U.S. Supreme Court, South Africa, theory

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Date posted: November 19, 2012 ; Last revised: November 25, 2012

Suggested Citation

Kende, Mark, Constitutional Pragmatism, the Supreme Court, and Democratic Revolution (November 19, 2012). Drake University Law School Research Paper No. 12-36; Denver University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2178222

Contact Information

Mark Kende (Contact Author)
Drake University Law School ( email )
27th & Carpenter Sts.
Des Moines, IA 50311
United States
515-271-3354 (Phone)
515-271-1858 (Fax)
HOME PAGE: http://www.law.drake.edu/centers/conLaw
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