Is “normative constitutional theory” just a “recreational debating society”?

April 11th, 2011

This article so argues. Andrew Coan lambastes all constitutional theory detached from a concern for the problems of complex society. He writes off intrinsic value of a written Constitution. He argues that we should have a constitutional theory that is reality-based (and I suppose, have very little to do with the Constitution). Here is a sample:

The problem is hardly confined to originalism. Indeed, the most remarkable feature of originalist arguments is one they share in common with many, perhaps most, other normative constitutional arguments: They operate in blissful ignorance of the real-world institutions and social conditions through and on which constitutional law operates. Indeed, much of normative constitutional theory as it is presently practiced resembles a recreational debating society more than a serious effort to improve the functioning of a massively complex modern society. If this seems too harsh, consider: Who but an academic constitutional theorist would believe that abstractions like writtenness or binding law or popular sovereignty could shed meaningful light on how we should structure our constitutional system, without a rigorous examination of how that system functions in practice?

The answer is almost certainly no one, or at least no reasonably informed person with even a modest inkling of the complexity of American government and the society it governs. This observation is hardly new,9 but the disconnect between normative constitutional theory and the empirical realities of constitutional practice remains sufficiently stark that it bears renewed emphasis. If constitutional theory is to live up to its aspirations, if it is to be worthy of the prodigious intellectual labors undertaken on its behalf, a new reality-based approach is urgently needed.10

So should the written Constitution play any role?

Indeed nothing, or virtually nothing, follows from our commitment to a written constitution. One can be committed to a written constitution in many ways and for many reasons almost none of which entail an originalist interpretive approach. For example, one can be committed to the constitutional text as conventionalist focal point; as a framework for common law interpretation; as a locus of popular constitutionalist discourse; or as one of many ingredients in a pluralist practice of constitutional adjudication. These approaches may or may not be superior to originalism on the merits, but each accords the written constitutional text an important role.5 With the conceptualist castle of writtenness demolished, originalists are left with their old standbys: popular sovereignty and constraint.


Larry Solum is somewhat critical here.

Recommended, although I think that the argument for this thesis is off the mark.  We need more and better normative constitutional theory, including “ideal theory.”  And we need more and better theorizing about the “feasible choice set” of realistic constitutional options–a topic on which I have written at length in Constitutional Possibilties.  We also need to maintain a high standard of civility in scholary discourse.