Liberalism and Disagreement in American Constitutional Theory

61 Pages Posted: 8 Jun 2021

See all articles by J. Joel Alicea

J. Joel Alicea

Catholic University of America — Columbus School of Law

Date Written: June 2, 2021

Abstract

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused around the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate about two propositions that are central to the liberal tradition: individualism and rationalism. Viewed in this way, constitutional theorists often thought to be opposed to each other are, in fact, allies in the debate over liberalism, even if they disagree about whether their shared theoretical premises imply an originalist or non-originalist methodology. Conversely, theorists often seen as allies profoundly disagree about the premises of their constitutional theories because they disagree about liberalism. Reorienting American constitutional theory to focus on the disagreement over liberalism will help us identify which constitutional theory is best and better understand the outcomes in important constitutional cases.

Keywords: liberalism, constitutional theory, originalism, non-originalism, individualism, rationalism

Suggested Citation

Alicea, J. Joel, Liberalism and Disagreement in American Constitutional Theory (June 2, 2021). Virginia Law Review, Vol. 107 (Dec. 2021, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3858835

J. Joel Alicea (Contact Author)

Catholic University of America — Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States

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