Constitutional Theory for People Out of Power

This essay examines various strategies for constitutional theorists out of power, commentators who reject the basic principles animating the present incumbent regime. The present strategies all involve exegesis on constitutional law. The standard essay on constitutional doctrine seeks to provide Supreme Court justices with the right reasons for reaching the right results in constitutional cases. The only difference between essays by persons in power and persons out of power is often the degree to which the scholar believes the Supreme Court needs instruction. Doctrinal analysis and constitutional theorizing ought not be influenced by the constitutional tendencies of the present Supreme Court or the present administration, constitutional commentators may believe, because justices (and perhaps other constitutional decision makers) ought to be open to any good constitutional argument or because constitutional commentators should speak to a more enduring audience than the present ruling coalition. Whatever the reason, progressive constitutionalists have for over twenty years engaged in a scholarly enterprise primarily designed to find the magic premise, information, or incantation that would transform conservative justices and other members of the ruling centerright coalition into liberal justices and democratic socialists. Progressive constitutional theorists or other constitutionalists out of power would be better off spending more time doing constitutional theory than constitutional law. Two hundred years of “nattering at justices” suggests that progressives who call on Merlin the Magician to turn Justices Scalia and Thomas into frogs behave as realistically as those progressives who call on Laurence Tribe to turn Justices Scalia and Thomas into liberals. Persons who reject the central claims of the incumbent regime need a constitutional theory that does more than help Supreme Court justices reach right results. The need of constitutional theory progressives need should address the conditions of persons who have limited power to influence official constitutional meanings. Some progressive theory should help the left establish constitutional priorities that will enable social democrats to choose between fifth and sixth best alternatives, the alternatives presently on the political agenda. Other forms of progressive theorizing might help social democrats understand why they do not have power and what might be necessary to gain power.