The Right Questions in the Creation of Constitutional Meaning

Abstract

In the peculiar rhetoric that is rapidly growing ubiquitous, constitutional theorists and anti-theorists seem to thrive on accusing one another of asking and answering the wrong questions. Apparently only a limited number of items are permitted on the theoretical agenda, and those who search beyond its limits must be quickly, even angrily, struck aside. Those denounced for the shape of their agendas may be condemned as nihilists or normal scientists, as extremist or irrelevant, as unsophisticated or incoherent. Indeed, critical analysis without an accompanying denunciation is an art form that barely has a place any longer in legal scholarship. In the realm of constitutional theory the problem is particularly acute, and perhaps made worse because so much is now being written in a field that not so long ago was near to being written off. Ronald Dworkin may be right to suggest that far too much talent is squandered on efforts to legitimate some "objective" form of judicial review. I have no idea. I have never tried to do it—not, at least, through sketching some grand theory to explain and justify the general trends in the work of our constitutional courts. If Erwin Chemerinsky believes that I have, then I fear that I have not written as clearly as the subject matter demands. For in his "reply" to my recent modest foray into the muddy and treacherous thicket of constitutional theory, he concludes that I have failed "because all who try to develop a value free system of judicial review inevitably must fail." Maybe they must. Were I among them, I would no doubt consider solving the problem to be the definitive mission of my intellectual enterprise. But I'm not and I don't.