The Failure, and Future, of Constitutional Theory
Crosspost from Balkinization
Constitutional theory is in need of a paradigm shift. It is obviously important to articulate an inspiring vision of what the country is and what we want the country to be, one that has the moral force and clarity to attract the kind of political support needed for meaningful policy change. I agree wholeheartedly with the contributors to the Constitution in 2020 volume that constitutional law has a crucial role to play in this regard. But in exalting constitutional law as an expression of nationhood and identity, and elevating the Constitution to the level of civic religion, we risk losing sight of a fundamental truth: constitutional law is, like any other form of law, an instrument of policy and a form of social technology. It is no small matter to engineer peace and prosperity on a national and even international scale. Yet a successful constitution is precisely such a feat of engineering. Consider the most grievous calamities of the last century. War, famine, genocide: we have not nature, but rather the failure of our methods and institutions for resolving disputes and allocating resources, to blame for these. In other words, it is our technologies of government that fail us catastrophically.
Law is a central component of the technology of government. And if law is to society as software is to a computer, then constitutional law is the operating system: it is a framework that enables, constrains, and structures human activity. From this perspective, it should be obvious that we can speak of both constitutional success and constitutional failure. And it should also be obvious that what humanity desperately needs is a body of knowledge that guides societies toward constitutional success and away from constitutional failure.
I would like to suggest that constitutional theory would be a more worthwhile endeavor, of greater value to humanity, if it were to do two things. The first is to articulate the criteria of constitutional success, or the goals that constitutional policy should aim to achieve. The second is to identify the constitutional choices that best advance those goals. The most basic criterion of constitutional success is the Hobbesian one of avoiding a state of “perpetuall warre of every man against his neighbor,” in which conflict is endemic and resolved on the basis of strength and strength alone. E. Adamson Hoebel, writing a half-century ago on “the law of primitive man,” deemed it the goal of law to avoid “ghastly explosion,” and he argued as a historical matter that those human societies that have endured have done so by expanding the scope of the law, by creating “effective instruments of procedure,” and by limiting and allocating the use of force in such a way as to enable “social authority” to prevail in the last analysis. The limitation and allocation of force; the establishment of effective procedures for the emergence and resolution of conflict; the survival of society without “ghastly explosion”: although Hoebel does not call these criteria of successful constitutionalism, that is precisely what they are.
A society such as our own that is fortunate enough to take the possibility of “ghastly explosion” for granted (or, perhaps more accurately, one that has already endured its ghastly explosion and expunged its most egregious constitutional defect by way of a bloody civil war) rightly has higher and more extensive ambitions for its constitutional law than mere survival. But it should be equally obvious that other countries are not (yet) so fortunate. Nor is the international community, which remains characterized by what Hoebel called “primitive law” on a global scale. Law exists, but vindication of the law is largely a matter of self-help; rules exist, but enforcement and observance of the rules occurs on the basis of non-legal considerations, and at the discretion of the powerful. The prospect of ghastly explosion stalks the system. The international legal order needs to be infused with principles capable of commanding allegiance, and to be backed by mechanisms and institutions that are capable of rendering those principles meaningful yet do not amount to a new, uniquely terrifying Leviathan of global government. In short, the world is in need of constitutionalization.
Can constitutional theory rise to the challenge?
Are we to have the kind of constitutional theory that is narrowly preoccupied with judicial hermeneutics? Should we spend another fifty years debating the implications of the so-called “counter-majoritarian dilemma,” on the questionable assumption that such a dilemma even exists? Is constitutional theory to be a parochial discipline that reaches no further than the country’s borders and treats the rest of humanity as largely irrelevant, except perhaps for historical purposes?
Or will we have the kind of constitutional theory that concerns itself with questions of institutional design, and on ascertaining which interests and outcomes are privileged by what kinds of rules, practices, and structures? Will constitutional theory look beyond our borders for a better understanding of the impact of different design choices? Will constitutional theorists seek to discern in domestic practice what is worthy of global constitutionalism, and find in global constitutionalism what is worthy of domestic practice? Can constitutional theory help to foster a dialectic that advances not simply the development of American constitutional law, but rather the development of constitutionalism more generally?
David S. Law is Professor of Law and Professor of Political Science at Washington University School of Law. He will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), and Richard Primus (University of Michigan Law School, "The Necessity and Peril of Ethical History").