Neutral Principles and Political Power: A Response to Reverse Political Process Theory

Abstract

Professor Tang’s reverse political process theory is both theoretically insightful and morally intuitive. Its common sense appeal can seem impossible to deny: even if we cannot agree that the Constitution grants special protection to the least powerful among us, perhaps we can at the very least agree that it should not provide that special protection to the most politically powerful parties, those best equipped to advance their own interests in the pluralist bazaar of politics. That common sense appeal, moreover, should not mask the virtue of its potentially far-reaching implications for doctrine. This Response explores questions about Tang’s descriptive account of the Court’s recent cases and the place of his normative account within a broader theory of constitutional interpretation and implementation. First, it questions whether the doctrinal trends Tang identifies really are best explained by a special solicitude to politically powerful parties. If neutral principles—or, at least, other principles—can explain the cases while staying true to the Court’s stated rationales, then we should be hesitant to adopt reverse political process theory as an explanatory account. Instead, it is possible his descriptive account is best understood as identifying the consequences of the Court ignoring political power. Second, it presses on Tang’s claim that his preferred version of reverse political process theory forms an “overlapping consensus,” which constitutional theorists of all stripes should support. It could be, on the contrary, that it satisfies no one: political process theorists want courts to go further than merely declining to favor the politically powerful, and constitutional theorists with different foundations (most prominently, but not exclusively, originalists) will see no reason to go that far in the first place.

Keywords: law, constitutional law, public law, political process theory