Practice-Based Constitutional Theories.

• Author: Alicea, J. Joel
• Date: 01 November 2023

FEATURE CONTENTS
                INTRODUCTION 570 I. AN OVERVIEW OF PRACTICE-BASED CONSTITUTIONAL THEORIES 577 A. Two Components of Constitutional Theories 579 B. Defining Practice-Based Constitutional Theories 582 1. Examples 584 2. The Traditionalist Subset 587 3. Complications and Tensions 590 II. LEGAL POSITIVISM 592
                III. REFLECTIVE EQUILIBRIUM 598 IV. STABILITY AND DISAGREEMENT 607 A. Rawls, the Problem of Stability, and the Overlapping 608 Consensus B. The Overlapping Consensus in Practice-Based 613 Constitutional Theories C. The Misuse of the Overlapping Consensus 615 V. PRELIMINARY THOUGHTS ON THE RELEVANCE OF STABILITY FOR CONSTITUTIONAL THEORY 623
                CONCLUSION 628
                

INTRODUCTION

American constitutional theorists commonly assert that a viable constitutional theory must "describe[] and explain[]" the "actual process of constitutional interpretation." (1) Theories are said to be deficient insofar as they contradict "what we actually do" in adjudicating constitutional disputes, (2) are "incompatible with the bulk of legal practice," (3) or cannot give a "plausible account of American constitutional practice." (4) The essence of this view is that a constitutional theory should generally conform to our social practices. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory. (5) This kind of argument, which "[p]roceed[s] from th[e] assumption" that "the foundation of the constitutional order inheres in the facts of social practice," is characteristic of what Richard H. Fallon, Jr. has called "practice-based constitutional theories." (6) These theories come in originalist (7) and non-originalist (8)--as well as conservative (9) and progressive (10)--varieties. Indeed, it is fair to say that the vast majority of the most influential constitutional theories are practice-based. (11)

Insofar as practice-based constitutional theorists are simply trying to provide an accurate description of how our constitutional system works, there is nothing particularly controversial about their insistence that constitutional theories reflect our social practices. Philip Bobbitt's famous description of the modalities of constitutional adjudication (12) could be understood as an example of this purely descriptive enterprise: an attempt to better understand how courts in fact resolve cases, irrespective of how they should resolve cases. (13) But practice-based constitutional theorists often go beyond purely descriptive claims to make normative claims. They do not just argue that their constitutional theories accurately describe our existing social practices. They argue that a constitutional theory that does not accurately describe our existing social practices is a less normatively sound theory. Ronald Dworkin, for instance, argued that a constitutional theory that "provide[s] the best constructive interpretation of the community's legal practice" (14) gives the law greater "moral authority." (15)

But from a normative perspective, why should we care whether a constitutional theory contradicts our current social practices? What if our current social practices are mistaken? For example, practice-based constitutional theorists often point to Brown v. Board of Education (16) as being so embedded in our social practices that any theory contradicting Brown is illegitimate. (17) But if we were having this conversation in the early twentieth century, we might very well regard Plessy v. Ferguson (16) as deeply embedded in our social practices. (19) What seems to matter is that Brown was emphatically right and Plessy was emphatically wrong, not the extent to which either case is or was part of our social practices. (20)

Of course, this example oversimplifies the claims of practice-based constitutional theorists and elides all sorts of important questions. What counts as part of our "social practices"? (21) By what standard are we assessing whether a practice is right or wrong, legitimate or illegitimate? (22) But the point of the example remains: the reason we think Brown was rightly decided does not turn on whether Plessy was deeply embedded in our social practices. We are quite ready to say that Brown was right even if Plessy was an established part of our social practices. And if that is true of Plessy, why would it not also be true of other social practices? In short, why should we care--as a normative matter--about whether a constitutional theory conforms to our social practices?

That normative question demands a normative answer. (23) To say that constitutional theories ought to conform to a social practice because that practice is our existing way of doing things is to overlook the distinction between descriptive and normative claims, (24) a basic distinction that constitutional theorists generally recognize as valid. (25) Yet, despite the importance and pervasiveness of practice-based constitutional theories, scholars have paid very little attention to their ostensible normative justifications in a systematic way. (26) To be sure, practice-based constitutional theorists have offered reasons why we should care about social practices, but there has been almost no examination of whether the reasons usually offered actually support the weight that these theorists accord to social practices.

The time is ripe for such an examination, particularly as we appear to be entering a period of rapid and significant change in the practices surrounding constitutional adjudication. As numerous scholars have observed, (27) the Supreme Court's recent cases have generally indicated a shift toward "text, history, and tradition" over other methods. (28) Dobbs v. Jackson Women's Health Organization held that there was no constitutional right to an abortion "because such a right has no basis in the Constitution's text or in our Nation's history." (29) New York State Rifle & Pistol Assn v. Bruen held that the test in Second Amendment cases is "whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding." (30) And Kennedy v. Bremerton School District held that the Establishment Clause "must be interpreted by 'reference to historical practices and understandings.'" (31) These are just a few important examples from the October Term 2021, and the shift they represent has the potential to challenge the conventional view among many practice-based theorists that the Court "has never established a priority or ranking of... different methods of interpretation." (32)

The Court's move toward more history-focused methodologies underscores that "[constitutional practice changes." (33) As Fallon has observed: "[S]hifts in the balance of power on the Court can have profound effects in unsettling and then sometimes resettling norms of interpretive practice. Transformation has happened before. It could happen again." (34) Much like Brown signaled a change in our social practices, so too does Dobbs. But, again, should our assessment of such cases depend on whether our social practices have changed, and if not, what does that tell us about the relationship between the descriptive and normative claims of practice-based theories?

These are important questions that call for a thoroughgoing examination of the normative foundations of practice-based constitutional theories. That is the task of this Feature: to identify and examine the justifications that many of the leading practice-based constitutional theorists give for conforming their theories to our social practices. In doing so, the Feature provides the first full-length treatment of practice-based constitutional theories. (35) At the same time, the scope of the Feature is limited in at least one important respect: I focus on the justifications that practice-based theorists give for adopting a practice-based approach to constitutional theory in principle. I do not examine whether, assuming one has already adopted such an approach, there are good reasons for favoring any particular practice-based theory over other practice-based theories. (36)

When we turn to reasons for adopting practice-based theories in principle, three justifications stand out from the literature: (1) the concept of law found in legal positivism, (2) the justification of beliefs achieved through reflective equilibrium, and (3) the stability that comes from an overlapping consensus. Each of these justifications is sophisticated, reflecting the influence of the jurisprudential and political theories of H.L.A. Hart (37) and John Rawls. (38) But as I will argue, none of them provides a compelling normative reason to conform constitutional theories to our social practices. That is true even if one accepts the Hartian and Rawlsian concepts that undergird these justifications. Nothing in my argument depends on rejecting legal positivism, the process of reflective equilibrium, or the importance of stability. My point, rather, is that these justifications for practice-based constitutional theories are insufficient on their own terms. They are transient justifications--justifications that, despite looking, at first glance, like answers to our normative question, only point us to other normative justifications that lie outside of themselves. It bears emphasizing that I will not be examining all possible justifications for practice-based theories, only the most common justifications that have in fact been offered. Nor will I be critiquing all justifications for practice-based theories, only those that fail on their own terms. For example, while I briefly discuss Burkean justifications for practice-based theories, I do not make them the focus of my critique, since they (unlike the other justifications examined below) could, if accepted, suffice to justify a practice-based theory. (39)

Before we can dive into the justifications for practice-based...