37 Pages Posted: 19 Nov 2012 Last revised: 25 Nov 2012
Date Written: November 19, 2012
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.
Keywords: pragmatism, constitution, U.S. Supreme Court, South Africa, theory
Suggested Citation: 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
By Michael Dorf