The State of Constitutional Theory

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Richard Fallon 

Although I have never before written anything for inclusion in a blog, I am pleased by this opportunity to celebrate Balkinization for its remarkable contributions over the past twenty years.  As per the invitation of Jack Balkin, I write to offer a few observations about the nature of U.S. constitutional theory, the current state of the discipline, and likely future developments, especially involving originalism.

The Nature of Constitutional Theory

Despite my having written about constitutional theory for nearly forty years, the nature of the field has always struck me as parochial.  Although there are distinguished exceptions, most U.S. constitutional theorists do not concern themselves much with constitutionalism in a conceptual, global, or comparative sense, or with the optimal contents of a well-designed constitution.  Instead, we tend to focus almost exclusively on how the Justices of the Supreme Court ought to interpret, implement, or apply the Constitution of the United States.

Within this U.S.-focused framework, constitutional theory is tightly linked to practice – a term meant to capture overlapping assumptions of the two leading Anglo-American jurisprudential thinkers of the past century, H.L.A. Hart and Ronald Dworkin.  Both understood law, as a conceptual matter, to be rooted in the behaviors and attitudes of relevant constituencies in accepting identifiable texts and sources as somehow authoritative or (for Dworkin) at least presumptively authoritative.  A mature legal system, Hart taught, also includes rules of adjudication and change.  And these rules depend, either directly or indirectly, on social facts involving their acceptance, which in the U.S. would centrally include acceptance by the Supreme Court.  Dworkin, who accorded interpretation by judges a central place in his theory of law, thought that a theory must “fit” official practice at least tolerably well.

On the jurisprudential models suggested by Hart and Dworkin, theories of constitutional interpretation can have either or both of two overlapping aims.  One is clarification.  Some theories and theorists assume that the Justices of the Supreme Court do not fully comprehend what they do.  Theory can clarify for them what they have in one sense dimly grasped but probably could not have verbalized.  Philip Bobbitt’s theory of interpretive modalities is of this kind.  So is David Strauss’s theory of common law constitutional adjudication.  So is Bruce Ackerman’s dualist theory.  Some of Jack Balkin’s work fits this mode as well.

The other overlapping but partly distinctive office of constitutional theory is to propose reforms that would improve constitutional practice but in ways that respect what the theorist takes to be the practice’s core, implicit assumptions.  Work of this kind almost always has a political or ideological valence.  Some early versions of originalism, as promoted by Ed Meese among others, took this form.  John Ely cast his representation-reinforcement theory partly as a defense of Warren Court liberalism, though he rejected Roe v. Wade.

The Current State of the Discipline

Unsurprisingly in light of the connections between constitutional theory and constitutional practice, the kinds of questions that theorists think worth addressing at any particular time tend to depend on how they would expect their hoped-for audiences, including the Justices of the Supreme Court, to respond to their proposals.  When I entered the legal academy, a number of leading scholars were advancing theories of constitutional interpretation inspired by John Rawls.  Today invocations of Rawls have substantially faded from the law reviews, not because Rawlsian theory has been philosophically discredited, but because the legal and political zeitgeist is inhospitable.  The country has moved to the right.  Politics have given us a very conservative Supreme Court to which, for various reasons, arguments appealing to Rawls would be anathema.

The felt need for constitutional theory to maintain connections with constitutional practice made possible the outsized influence of Justice Scalia.  By inserting originalist and textualist arguments into the mainstream of constitutional practice, Scalia became an agenda-setter for constitutional theorists.  Largely as a result of Scalia’s influence, originalism and textualism – which theorists have developed in a depth that no working Justice could plausibly have achieved – became exciting as much more than mere theoretical possibilities.  They riveted attention, including from critics, because they sketched readily imaginable short-term futures for constitutional law.

Although constitutional theory is tied to practice, theorizing also, inevitably, has a dynamic of its own.  There are now a myriad of originalist theories, differing from each other in sometimes important details.  Theorists, including former Scalia clerks, have sometimes found that the internal logic of their ideas impelled them into partial disagreement not only with each other, but also with the Justice who did most to inspire them.

Among notable developments on the originalist right, judicial restraint – which once was hailed as an originalist virtue (to be contrasted with the imagined free-form judicial lawmaking of jurisprudential liberals) – is increasingly cast as incompatible with originalism’s deepest theoretical commitment to enforce original constitutional meanings.  Especially early in his career, Justice Scalia trumpeted his acceptance of an important role for stare decisis as an “exception” to his originalist philosophy.  Without such an exception, he thought, originalism would be intolerably unsettling of settled practices.  “I am an originalist [but] not a nut,” he reportedly said.

But as the country moved politically to the right, academic originalists increasingly criticized Scalia’s “faintheartedness.”  Randy Barnett and Gary Lawson were among the first to adopt uncompromisingly originalist positions.  More recently, Will Baude has responded to criticisms of originalist Justices for overruling precedents by maintaining that the right question is not whether the rejected cases should be overturned, but why so many decisions that might be incompatible with original meanings are left unquestioned.  (See Baude, Precedent and Discretion, 2019 Sup. Ct. Rev. 313.) Larry Solum, who agrees with Scalia that an originalist “big bang” would be unacceptably disruptive of settled expectations, has written of the need for originalists to work out strategies for a gradual transition to a pervasively originalist body of constitutional law.  (See Solum, Originalist Theory and Precedent: A Public Meaning Approach, 33 Const. Comment. 451, 462 (2018).)

Meanwhile, among liberal or progressive constitutional scholars who despair of persuading a majority of the Justices to adopt their views, there is, predictably, an ongoing migration to various forms of critical theory.  Some notable work paints the Supreme Court’s conservative Justices as agents of the political right.  (See, for example, Mike Klarman’s 2020 Foreword to the Harvard Law Review).  Other constitutional theorists continue to direct multidimensional attacks on originalism.  Critical race scholars seek to speak truth to power, but mostly without advancing interpretive proposals that are claimed to “fit” the main outlines of existing practice.   A rising generation of progressive scholars (including my colleague Niko Bowie) is mounting assaults on the institution of judicial review.

Amid the sea-change in the tone of progressive constitutional theory, Jim Fleming seems an increasingly lonely liberal voice in echoing Ronald Dworkin’s famous call for the Supreme Court to read the Constitution to make it the “best” it can be.  Indeed, if any call for Dworkinian-style interpretation gains broad traction in the years just ahead, I expect it to be Adrian Vermeule’s advocacy of “common good constitutionalism” rooted in the values of the natural law tradition.  (See Vermeule, Common Good Constitutionalism: Recovering the Classical Legal Tradition (2022).) 

A Challenge for Originalists as We Look Toward the Future

I began by noting connections between the practice of constitutional theory in the United States and judicial practice in the Supreme Court.  But as academic theorists spin out increasingly sophisticated and ambitious originalist and textualist theories, a notable disparity has emerged in perceptions of the current Justices, their methods, and their agenda.  While popular commentators on the Court routinely characterize it as originalist, a number of serious academic originalists disagree.  According to them, the conservative Justices may posture themselves as committed to the enforcement of original constitutional meanings, but they are inconsistent in their practice. 

It is a live question, in my view, whether we could ever reasonably expect the Justices to adhere consistently to any sophisticated version of any prescriptive constitutional theory.  Although constitutional theory as practiced in the academy needs to maintain connections to the practice of the Supreme Court, the Justices do not, and cannot be expected to, treat consistency in theory as their foremost professional obligation.  The Justices are busy people with urgent practical responsibilities.  They are not historians, linguists, or legal philosophers.  Among their responsibilities is to shape a reasonably just and workable body of constitutional law for the future out of the materials that the past has bequeathed them.

But even if we supposed that the Justices wanted to be consistently originalist (or textualist), I do not believe that originalist theories – as developed so far – have supplied them with adequate tools with which to work.  Here are three challenges that I would put to originalist theorists who might reasonably hope to influence the Supreme Court’s practice in the short-term future.  Until these challenges are met, I am skeptical that any genuinely principled form of originalism would be consistent with the deep, implicit norms of American constitutional practice.

 First, originalists need to explain more fully than any of the Justices has explained so far how a commitment to the enforcement of original constitutional meanings relates to the doctrine of stare decisis, which has been practiced by every Justice of the Supreme Court, in one form or another, from the very beginning of constitutional history.  At the present time, it seems plain that the purportedly “originalist” Justices frequently decide cases based on precedent, with little or no attention to original meanings.  Most of the time, moreover, they do not claim compulsion by the doctrine of stare decisis.  And if not, their practice invites the charge that their behavior is unprincipled – that they make originalist arguments only when it suits their purposes to do so.

For ostensibly originalist Justices to practice originalism with principled consistency, they would need a theory of the circumstances, if any, under which a precedent or line of precedents has become so settled or fundamental that it should be adhered to even if it were demonstrably incompatible with the Constitution’s original meaning.  To be sure, the doctrine of stare decisis poses a challenge to nonoriginalists as well as originalists.  No one believes that the Supreme Court should never overturn a past decision.  But originalists, who frequently accuse nonoriginalists of simply imposing their preferences from the bench, have a special obligation to be forthcoming at least about when originalist Justices should or must adhere to what they take to be demonstrably erroneous precedents.  So far as I am aware, only Justice Thomas has taken a clear stand on this question.  (See Gamble v. United States, 139 S. Ct. 1960, 1984–85 (2019) (Thomas, J., concurring) (“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”).)

Although a number of originalist theorists have begun to address the challenge posed by the doctrine of stare decisis, a second, closely related challenge has attracted far less attention.  This second challenge arises from the so-called party-presentation principle.  That principle holds, to a reasonable approximation, that the Court should normally decide the cases before it as shaped and presented by the parties.  But what should originalist Justices do when the parties offer originalist arguments that are manifestly cursory, one-sided, or otherwise unreliable?  Citing the party-presentation principle, Justice Thomas recently wrote, in New York State Rifle & Pistol Assn., Inc. v. Bruen, 142 S. Ct. 2111, 2130 n.6 (2022), that “[c]ourts are … entitled to decide a case based on the historical record compiled by the parties.”

However plausible that approach might be for the lower courts, its application in the Supreme Court could easily prove disastrous when the parties’ briefing is poor, since a determination of constitutional meaning will bind not only the parties, but also lower courts throughout the country.   At the same time, total rejection of the party-presentation principle also appears unacceptable.  Justices who felt bound to resolve every issue of original meaning that was posed by one of the parties, but who attempted to conduct a professionally competent examination of the historical record, would find themselves swamped by more research obligations than any professional historian could manage within the time allotted. 

A third challenge for originalists is closely related to the second.  In writing before she became a judge, Justice Amy Coney Barrett counseled that originalist Justices both could and should avoid unwanted obligations to reconsider long-settled precedents by denying certiorari whenever they think it prudent to leave past rulings in place, regardless of their original correctness.  (See Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921, 1929–33 (2017).)  This strategy – which I do not doubt that the Justices practice frequently – recalls Gerald Gunther’s famous criticism of Alexander Bickel’s counsel to the Justices to aggressively deploy “the passive virtues” to avoid principled resolutions of cases whenever principled decisions would be impolitic.  To paraphrase Gunther, a consistent, “principled” originalist Justice who declined to grant cert whenever she thought that overruling a past decision would be imprudent would be “one hundred percent principled” only in whatever fraction of cases – which might be very small – she and/or a sufficient number of her colleagues thought it expedient to reconsider arguably nonoriginalist precedents.

Originalism that is practiced only on a deliberately selective basis, as a result of strategic deployment of the cert jurisdiction, would seem to me to be hard to justify on originalist premises.  If it is important as a matter of principle for the Supreme Court to decide cases consistently with the Constitution’s original meaning, the operative principle would seem to me to extend to many of the cases that the originalist Justices, for pragmatic or ideological reasons, would prefer not to confront on the merits.  But I offer that judgment only provisionally.  I would be eager to hear what more originalist theorists have to say about strategic denials of certiorari as a mechanism for insulating many arguably nonoriginalist precedents from reconsideration.

For the moment, my prediction is that the challenges to originalist theory and practice that I have just laid out will increasingly lead conservative constitutional theorists either to reject the currently leading versions of originalism or to find ways to temper or supplement them.     The most attractive path for conservative constitutional theory, I would further speculate, may involve the development of theories that link constitutional interpretation to substantively conservative political morality.  As I suggested above, Vermeule’s recent book, which may serve as an exemplar of this approach, highlights respects in which his theory of constitutional interpretation bears affinities to Ronald Dworkin’s.  If that common ground proves fertile, it is also possible that the seeds of a new generation of progressive constitutional theories may one day take root within it, though I expect that development to take more time. 

Richard Fallon is Story Professor of Law, Harvard Law School, and an affiliate member of the Harvard Government Department.  His email address is rfallon@law.harvard.edu.