The End of Theory

Book Review THE END OF THEORY FREEDOM AND TIME: A THEORY OF CoNSTITUTIONAL SELF-GOVERNMENT By Jed Rubenfeld. Yale University Press, 2001. INTRODUCTION Imagine how you would answer the following question: "What is the central problem in constitutional law? " This question is routine to constitutional scholars, whose most common answer is the "counter-majoritarian difficulty,"' Alexander Bickel's classic phrase for the dilemma posed by unelected federal judges' interference with the decisions of democratically elected, politically accountable authorities. Imagine, however, that the answer to this difficulty turns out to depend on the resolution of an entirely different issue-the legitimacy of the Constitution's binding authority over time-that can be answered only by reference to a source other than any of those conventionally consulted, like the text, original understanding, or structure of the Constitution. Such imaginative leaps, difficult as they may be to follow, await the readers of the new book by Yale Law School Professor Jed Rubenfeld. There is more, much more, to Rubenfeld's constitutional vision, but many readers, including some scholars in the field, likely will be put off by his attempt to base his claim of judicial primacy in interpreting the Constitution not on any sources of constitutional meaning that are commonly regarded as authoritative, but rather on a blend of abstract principles derived primarily from the fact that the Constitution is written.3 In this book, as in his prior writings, Rubenfeld boldly rejects the attempts of virtually all other constitutional theorists to make sense of constitutional law. He argues IMAGE FORMULA7 that these scholars, including such luminaries as Alexander Bickel and Charles Black, have misdiagnosed the counter-majoritarian difficulty as the central question in constitutional law.4 Rubenfeld suggests that they all have failed to understand that this problem, as conventionally conceived, is not the major difficulty in constitutional theory, because its solution depends on resolving an even more basic question-the truly fundamental question of constitutional law, in his opinion-how and why the Constitution, drafted and ratified over two centuries ago, should bind the nation and continue to be regarded as legitimate long after the deaths of those who drafted and ratified it.5 In Rubenfeld's opinion, answering this fundamental question requires developing a political theory of legitimacy derived independently from the text of the Constitution or any other conventional source of constitutional authority. The text of the Constitution provides no guidance on how it should be interpreted; if one were to consult the Constitution for such guidance, one merely would be engaged in the circular exercise of interpreting the Constitution in order to determine how to interpret the Constitution. Instead, Rubenfeld suggests, one should derive a non-native theory of legitimacy from the fact that the Constitution is written. The fact of its "written-ness," in Rubenfeld's terminology,6 gives rise to some very significant inferences, including the Framers' objective of securing a revolutionary form of democratic self-government that would endure over time. Another equally if not more important inference is the identity of the institution best situated to elucidate and preserve constitutional meaning over time. By Rubenfeld's reckoning, this institution is the judiciary, because of its special training and because it is the least prone to the whims of present majorities. Thus, the counter-majoritarian difficulty dissolves-any tension between judges and present majorities turns out to be illusory-because only judges can maintain our system of self-government over time by steadfastly discharging their special functions of elucidating and enforcing constitutional commitments. In short, the counter-majoritarian difficulty dissolves because the legitimacy of the Constitution over time is possible only by virtue of judicial review. …