Constitutional Skepticism: A Recovery and Preliminary Evaluation

123 Pages Posted: 28 Jan 2014  

Louis Michael Seidman

Georgetown University Law Center

Date Written: January 28, 2014

Abstract

The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that the various strands share a common core. At base, all forms of constitutional skepticism rest on doubts about whether moral and political disagreement can be bridged by a legal text. Those doubts, in turn, are grounded on a rejection of global moral skepticism and on deep strands of American thought that emphasize the possibility of moral knowledge. In Part III, I very briefly suggest some preliminary conclusions about how we should view constitutional skepticism. I argue that there are reasons to think that a dose constitutional skepticism might mitigate some of our current political dysfunction.

Keywords: skepticism, constitution, history

JEL Classification: K00, K30, K39

Suggested Citation

Seidman, Louis Michael, Constitutional Skepticism: A Recovery and Preliminary Evaluation (January 28, 2014). Available at SSRN: https://ssrn.com/abstract=2387031 or http://dx.doi.org/10.2139/ssrn.2387031

Louis Michael Seidman (Contact Author)

Georgetown University Law Center ( email )

Washington, DC 20057
United States

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