Constitutional Theory in a Nutshell

Abstract

The purpose and function of this article is to provide the intelligent novice a beginner's guide to the considerable body of scholarly writings about the theory of American constitutional law. This article is all about trying to make some sense of in-class discussion and out-of-class readings in treatises and law reviews of a peculiar dialect of legalese that might be called "con law prof talk."

Constitutional theory helps us to master our subject. It helps us to understand Supreme Court decisions and helps us to cope with the elaborate and often conflicting opinions of the Justices. It allows us to distinguish between a good argument and a bad argument. Constitutional theory helps us to understand where an argument is coming from and where it might take us. It helps us to see the big picture. We better understand how a doctrine came to be and how it might evolve. We see how different doctrines are related and how they fit into the overall organization of constitutional law. Constitutional theory allows us to talk about our subject with each other. It is the patois that constitutional law professors write and speak to other professors and to their students. If we manage to gain some perspective from the vantage of constitutional theory, we will better understand constitutional law. At least, that is what a con law prof would tell you while sober.

This article provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the vast body of literature. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. This article is organized around three basic interpretative questions: Who has the authority to interpret the Constitution? What are the legitimate sources of meaning for interpreting the Constitution? How is the Constitution interpreted within different theoretical approaches? The discussion then briefly identifies some of the basic tenets of the prominent contemporary schools of legal philosophy about the Constitution: liberal theory; conservative theory; feminist theory; critical race theory; and postmodern theory. Finally, a somewhat self-consciously introspective conclusion will ask rhetorically: does theory matter? (The answer is a faux-Zen bit of con law prof talk: "It depends. . . .")

Keywords: Constitution, constitutional theory, constitutional interpretation