Asking Better Questions: The Problems of Constitutional Theory

Recently, some members of the public law subfield have begun exploring American constitutionalism in ways that may sound strange, if not perverse, to the uninitiated. Panels and papers are devoted to such topics as What is the Constitution? and Can there be unconstitutional constitutional amendments? Although confusing to some academics, these novel approaches to standard academic pursuits are also opening new lines of scholarly inquiry and unearthing doubtful assumptions that have gone unchallenged for too long. By laying out the new questions that political scientists are asking and could ask about constitutional theory, this paper may provide a guide for the perplexed and directions for future research. Throughout most of the twentieth century, the question, How should judges interpret the Constitution? was the central focus of constitutional theory. This inquiry conflated at least two distinct issues and, in so doing, ruled out legitimate constitutional possibilities. Because legal commentators failed to discriminate between theories about what the Constitution means and theories about how a particular institution, the judiciary, should resolve constitutional controversies, they normally assumed without question that the fundamental principles of the Constitution are judicially enforceable and that the judiciary is the authoritative interpreter of the Constitution.