Toward a reality-based constitutional theory.

• Author: Coan, Andrew B.

TABLE OF CONTENTS INTRODUCTION I. THE UNREALITY OF CONTEMPORARY CONSTITUTIONAL THEORY II. UNTAPPED EMPIRICAL RESOURCES A. The Supreme Court and Public Opinion B. Voter Competence C. Political Accountability III. A Synthetic Approach A. A New Empirical Awareness B. The Role of Empirical Intuitions C. Exploiting Available Resources CONCLUSION INTRODUCTION

For most fields of American legal scholarship, the centrality of empirical questions to the serious study of law is old news. (1) Regrettably, one cannot say this of normative constitutional theory. Despite the alleged triumph of legal realism, despite the empirical turn of closely related fields such as judicial behavior, despite years of savage criticism of constitutional-theoretical navel-gazing, a startling number of constitutional theorists continue to approach their work as a purely conceptual enterprise. This is particularly true of originalists, but it is true of others as well. Over the past half century, a substantial fraction of normative constitutional theory has consisted of attempts to reason more or less deductively from one abstract ideal of democracy or another.

This is deeply unfortunate. The object of normative constitutional theory is--or should be--to improve the functioning of a massively complex system of governance. Any progress in that direction will require sustained attention to the real-world institutions and social conditions through and on which constitutional law operates. Contrary to the view of some critics, (2) normative theory has an important role to play in this effort. Data do not explain or--what is more important--evaluate themselves. But a far more rigorous engagement with empirical realities is necessary if normative theory is to make a useful contribution.

Originalism is a perfect example. In recent years, a diverse group of prominent constitutional theorists has attempted to revive the old argument that our commitment to a written constitution entails an originalist approach to constitutional interpretation. (3) This argument comes in various forms. some depend on other controversial justifications for originalism. some assume the very authority they purport to justify. But in its strongest form, the originalist argument from writtenness holds the possibility of providing an independent justification for originalism. The idea, which seems at least superficially plausible, is that only originalism can explain why we keep the written Constitution around.

This claim has been extremely influential in the New Originalism. Arguably, it is the most distinctive normative claim to come out of that movement. But it cannot be sustained on close examination. 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 a 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. (4)

With the conceptualist castle of writtenness demolished, originalists are left with their old standbys: popular sovereignty and constraint. But the force of these normative justifications is substantially dependent on empirical considerations that no originalist has ever attempted to investigate systematically. This is especially true of the argument from constraint but also applies to the argument from popular sovereignty.

As to popular sovereignty: What sort of constraints would original meaning place on contemporary majorities? How far would nonoriginalist decisions depart from the durable views of contemporary majorities? To what extent do any such views exist? And if they do not exist in meaningful numbers today, what is the likelihood they existed at the founding? To what extent do contemporary Americans identify themselves as members of a temporally extended American people? Is an originalist interpretive approach necessary--as a practical matter--to preserve the efficacy of future acts of popular sovereignty (either through the legislative process or constitutional amendment)? (5)

As to constraint: Can any interpretive theory meaningfully constrain the decisions of individual judges? What about the decisions of a large, diverse, and politically appointed judiciary? How does originalism compare in this respect to other plausible alternatives? How does it compare with respect to practical consequences for the economy, foreign policy, and civil rights? of course, few nonoriginalists have purported to answer these questions either. (6) Indeed, their existence is barely acknowledged by either side. This indifference to the actual functioning of American government is an embarrassment for constitutional theory. (7)

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, (8) 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.

As already mentioned, such an approach will have to consist of more than just empirical inquiry. (9) Many of our constitutional disagreements obviously do have a large empirical dimension, but in a society as politically and ethically heterogeneous as the contemporary united states, plenty of difficult normative questions would remain even if all empirical disagreement were miraculously resolved. (10) Perhaps more important, normative considerations will strongly influence our response to the substantial empirical uncertainty that even our best investigative efforts will inevitably leave in their wake. Too often, however, the inevitability of empirical uncertainty has become an excuse for complacency. There are unquestionably times when we have no choice but to rely on rough assumptions, to confess ignorance, or to resort to crude heuristics from decision theory. (11) But before we resign ourselves to any of these second-best options, it is imperative that we exhaust all available empirical resources. A great many such resources are available in...