Intellectual History as Constitutional Theory

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

What role, if any, should intellectual history play in constitutional theory? This is a complex question, because there are many ways in which the history of ideas and the theory of constitutional law could interact. Two of the most important possibilities are captured by the distinction between “intellectual history of constitutional theory” and “intellectual history as constitutional theory.”

Consider intellectual history of constitutional theory first. Intellectual history can take constitutional theory as an object of study, constructing narratives that trace the development of constitutional theories, elucidating the motives and goals of constitutional theorists, and explaining the processes by which constitutional theories influence constitutional practice (and vice versa). This is surely an important enterprise, valuable in itself and for the contribution it can make to the development of constitutional theory. The intellectual history of constitutional theory and doctrine may give rise to problems and controversies, but such difficulties seem likely to be similar in kind to the history of ideas in related domains, such as political philosophy or jurisprudence.

This Article is mostly about the second possibility—intellectual history as constitutional theory. It might be argued that intellectual history could constitute a theory and method of constitutional interpretation—or to be more precise, of constitutional interpretation and construction. Professor Saul Cornell has discussed this possibility in his recent article, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism. Cornell proposes that constitutional interpretation utilize “the contextualist methodology favored by most contemporary American intellectual historians,” which Cornell asserts provides “a common set of interpretive practices.”Cornell relies on the work of Professors James Kloppenberg and David Hollinger, as well as the work of the Cambridge School, represented by Professor Quentin Skinner and others.

The nature of Cornell’s claim about the role of intellectual theory is not entirely clear, and ultimately the important question is not what Cornell claims. The important question is what role intellectual history can and should play in constitutional practice. In order to get at that question, we will investigate a strong (and perhaps exaggerated) version of Cornell’s thesis. We will consider the possibility that intellectual history (as practiced by contemporary historians like Kloppenberg and others) could be employed as a theory and method of constitutional interpretation that can displace the approaches represented by textualism and originalism and by those forms of living constitutionalism that incorporate textualism or originalism as one of a plurality of methods or modalities of constitutional interpretation. That is, we will investigate the idea that interpretive methods drawn from intellectual history will do a better job of extracting the “meaning” of constitutional text than the methods developed by judges, lawyers, and legal scholars.

This Article will begin that exploration in Part I by presenting a framework for assessing theories of constitutional interpretation and construction. Part II will investigate contextualist methodology used by selected intellectual historians. Part III will outline the difficulties with any attempt to utilize intellectual history as a method for discovering the communicative content of legal texts. Part IV will turn to the positive (but supporting) role that intellectual history can play in constitutional practice. A conclusion will follow.

The primary focus of this Article is the role of intellectual history in constitutional interpretation and construction; however, to some extent, an investigation of the “contextualist methodology” of intellectual history will require a comparison with ideas from legal theory. For this reason, textualism and originalism will be used as points of comparison

Public Legal Reason

This Essay develops an ideal of public legal reason—a normative theory of legal reasons that is appropriate for a society characterized by religious and moral pluralism. One of the implications of this theory is that normative theorizing about public and private law should eschew reliance on the deep premises of deontology or consequentialism and should instead rely on what I shall call “public values”—values that can be affirmed without relying on the deep and controversial premises of particular comprehensive moral doctrines. The ideal of public legal reason is then applied to a particular question—whether “welfarism” provides the sort of reasons that are appropriate for legal practice. The answer to that question is “no”—to the extent that welfarism contends that the normative assessment of legal policies should rely exclusively on information about individual preferences, welfarism relies on deep and controversial premises of consequentialist moral theory that fail the test of public reason.

The Essay also investigates the thesis, advanced by Louis Kaplow and Steven Shavell, that any fairness principle (a nonwelfarist method of policy assessment) can violate weak Pareto (making everyone worse off). Whatever the implications of Kaplow and Shavell’s argument, it does not show that welfarism can provide public legal reasons.

The essay concludes that law’s justifications should rely on normative principles that are accessible to reasonable citizens, whether they are theists or atheists, deontologists or consequentialists, moral philosophers or economists. Law’s deliberations should be shallow and not deep. Law’s reason should be public.