The Consensus Constitution

Abstract

An ascendant view within constitutional law contends that the Supreme Court almost inevitably interprets the Constitution in a manner that reflects the "consensus" beliefs of the American public. Given that many of the Constitution's key provisions contain indeterminate language, this view claims that Supreme Court Justices imbue those phrases with the prevailing sentiments of the times. This increasingly influential approach-one that is articulated by some of the most prominent voices within modern legal academia-aims to correct what it deems a romantic myth regarding the Court's ability to protect minority rights.

This Article challenges the ascendant view by identifying and critiquing the defining features of what it labels "consensus constitutionalism. " Despite being grounded in history, consensus constitutionalism reveals no familiarity with a defining debate that flourished among American historians that stretches back to the 1950s-a debate that resulted in conflict-based history supplanting its consensus-based counterpart. Consensus constitutionalism offers an unsatisfying understanding of history, as it obscures the deep cleavages that often divide Americans regarding constitutional questions. Consensus constitutionalism also offers an unsatisfying understanding of law, as it invites a foreordained conception of constitutional decision making and an anemic notion of the Court's countermajoritarian capabilities. Reexamining Brown v. Board of Education and Loving v. Virginia, this Article provides an alternate approach to exploring legal history-contested constitutionalism-which honors the significance of both ideological conflict and the Court's countermajoritarian capacities.