Constitutional Commentary, Forthcoming
14 Pages Posted: 6 Jan 2014 Last revised: 12 Mar 2014
Date Written: January 6, 2014
What is the connection, if any, between the external perspective of the historian or political scientist and the internal perspective of lawyers and judges? That is the puzzle for constitutional law posed by Charles Beard’s classic, An Economic Interpretation of the Constitution of the United States (1913). Beard challenges us either to reconcile our external and internal perspectives on constitutionalism, or else conceivably to declare them irreconcilable.
I begin by showing that standard approaches to constitutional adjudication – originalism and Dworkinian moralism – are resolutely internal and thus have little use for the external standpoint of Beardian scholarship. I then describe a strategy of reconciliation offered by Justice Holmes, one that connects external and internal perspectives by means of a nonideal theory of constitutional judging under political constraints. The theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match “the actual equilibrium of force in the community – that is, conformity to the wishes of the dominant power.” In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law. External Beardian scholarship helps to delineate the feasible political options or possibilities for constitutional law, a critical datum from the internal but nonideal perspective of the Holmesian judge.
Suggested Citation: Suggested Citation
Vermeule, Adrian, Beard and Holmes on Constitutional Adjudication (January 6, 2014). Constitutional Commentary, Forthcoming; Harvard Public Law Working Paper No. 14-04. Available at SSRN: https://ssrn.com/abstract=2375271 or http://dx.doi.org/10.2139/ssrn.2375271
By Jack Balkin
By Jack Balkin