The Cycles of Constitutional Theory

I INTRODUCTION Constitutional scholarship--of which constitutional theory is one branch (1)--is inevitably a reaction to what is occurring today in constitutional law. The primary focus is upon the Supreme Court, but even with regard to the Constitution as it operates outside the courts, a good portion of the scholarship tends to focus on what is of immediate political interest. It would be surprising if things were any different. Historical perspective, however, suggests some difficulty for the inevitably present-driven endeavor of constitutional theory. Seen through the lens of history, it is apparent that arguments about the Constitution have a way of coming around again. When they do, they carry the potential to embarrass their original sponsors. Today's arguments may not be so appealing under very different circumstances. But do changing circumstances necessarily justify changing constitutional theory? Is it even possible to adopt theoretical views about constitutional meaning and interpretation that will endure over time? These problems are acute when it comes to the mainstay of constitutional theory, scholarship about judicial review. Theorizing about judicial review necessarily occurs in response to Supreme Court decisions. Those decisions themselves are a function of the composition of the bench, the issues that come before the Court, and the Court's position vis-a-vis the other branches of government. When the ideological valence of Supreme Court decisions shifts, constitutional theorizing about judicial review tends to shift as well. (2) Over the last century or more there have been two general positions taken about judicial review: that it is a blight in a democratic system that must be curtailed, and that it is a valued part of U.S. government essential to the protection of constitutional liberty. One is a critique, the other a justification. Progressives (3) and conservatives have advanced both positions (in various permutations) at different times, depending upon which position seemed most apt to present circumstances, given their political views. (4) This Article explores the implications of the cycling of normative arguments, especially those about judicial review, for constitutional theory. It is an auspicious time to explore these issues because progressive and conservative positions are shifting again at this very moment. Not only that, but they are shifting in ways that permit us, perhaps for the first time in U.S. constitutional history, to see a full cycle clearly. Progressives at the turn of the twenty-first century are echoing criticisms offered by progressives one hundred years earlier, though progressives took a more positive position toward judicial review during the Warren Court. And it is appropriate to consider this problem now, because the next cycle may come more quickly than prior ones, raising questions regarding the consistency of constitutional theory more urgently. The problem of cycling arguments poses a difficult problem for scholars, who must respond to present events while struggling for theoretical consistency. At first blush it might seem that constitutional theorists are disingenuous because they grab the best arguments available to justify their positions under present circumstances and are too quick to abandon those arguments in favor of others as circumstances change. (5) But that is too trite a dismissal of deeply sophisticated and sustained projects about judicial review, constitutional law, and the process of constitutional change. It also might seem that constitutional theory cannot ever meet its promise to deliver "theoretical" or transcendent perspectives because the grist for the constitutional scholarship mill is simply too political to sustain enduring theory. But this is too easy as well, because over time, the arguments--despite their cycling--become more sophisticated in ways that unquestionably teach us a great deal about what it means to run a constitutional democracy. …