Constitutional theory has been challenged in recent years, by significant figures in the legal field, as essentially pointless. Too much normativity, not enough neutrality; too much conjecture, not enough data; too much politics, not enough truth. How should we constitutional theorists answer this basic challenge to the foundation of our research program? I suggest one possible solution here: we can make the discipline more rigorous by changing the way in which we assess competing claims in constitutional theory. Drawing on important work in epistemology, the philosophy of science, and legal theory, I examine the question of theory assessment and selection. I propose a set of criteria for constitutional theory selection consistent with the most cutting edge work in these fields and explain how we can use these criteria—simplicity, consilience, conservatism, and fruitfulness—and demonstrate how they operate to make theory assessment more sophisticated by applying them to two distinct sets of competing theoretical claims. Along the way, I discuss perennial debates like the controversy between those who claim that adjudication should be conducted with reference to legal reasons only and those who claim that courts may consider extra-legal reasons, including moral reasons, to decide cases. I then turn to examine a much more recent debate about the nature of certain doctrinal structures in constitutional adjudication. I argue, in the end, that more nuanced theory assessment techniques will advance constitutional theory in a manner that simultaneously answers foundational challenges and makes the research program more likely to produce testable, provable claims about the nature of constitutionalism going forward.
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol47/iss4/9