The State of Constitutional Theory on the Left and the Right

Participating in the Constitution in 2020 conference at Yale this weekend gave me a chance to consider the state of constitutional theory on the left. The contributors to the Constitution in 2020 book and many of the participants in the conference are well-known liberal constitutional scholars. My dominant impression is that there is a great deal of consensus among left of center con law scholars about which way most important cases should come out, but much less agreement about why. If you look at the big constitutional issues facing the Supreme Court – federalism, property rights, criminal defendants’ rights, the death penalty, executive power in wartime, abortion, campaign finance – there is very little disagreement among liberal scholars about the question of what the Court should do; though there is some divergence about how fast the courts should go in getting from here to there.

On the other hand, there is a great deal of debate about the theoretical reasons justifying these preferred results. Big-name liberal constitutional law scholars range from originalists like Akhil Amar, to Bruce Ackerman’s “constitutional moment” approach, to “living Constitution” theories of various types (e.g. – Laurence Tribe), to representation-reinforcement theories (e.g. – the late John Hart Ely and those who have build on his ideas), to “judicial minimalism” (Cass Sunstein), and several other theories I won’t go through here. The Constitution in 2020 book and conference largely sidestepped these theoretical debates by focusing on preferred outcomes in particular issue areas. As Paul Kahn (a participant in the conference, but not a contributor to the book) put it, the Constitution in 2020 project seems to call for “less talk and more action.”

The state of affairs on the right is almost exactly the reverse of that on the left. With rare exceptions, most conservative and libertarian constitutional theorists are originalists. Nowadays, most of them even agree that original meaning originalism is preferable to original intent. Despite this near-consensus on theory, there is enormous disagreement about its application to particular cases. Right of center originalists range from co-blogger Randy Barnett – who would urge judicial invalidation of a wide range of federal and state laws – to Robert Bork and Lino Graglia, who argue for near-total deference to the political branches. Some of this disagreement is a result of the conservative-libertarian ideological division. But even among conservatives, there is a fairly wide range of opinion on the proper scope of judicial review. My frequent coauthor John McGinnis, for example, favors much stronger judicial review than Bork or Graglia, for instance. Steve Calabresi and Michael McConnell are somewhere in between.