Practice-Based Constitutional Theories
abstract. This Feature provides the first full-length treatment of practice-based constitutional theories, which include some of the most important theories advanced in modern scholarship. Practice-based constitutional theories come in originalist and nonoriginalist—as well as conservative and progressive—varieties, and they assert that a constitutional theory should generally conform to our social practices about law. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory. Practice-based constitutional theorists would usually see it as a defect if a theory required a significant change in our social practices, such as overruling large swathes of landmark precedents.
But why should we care whether a constitutional theory conforms to our social practices? That normative question requires a normative answer, yet there has been very little scholarship systematically analyzing the justifications often given by practice-based theorists for conforming constitutional theories to our social practices. This Feature identifies and examines the primary justifications offered for practice-based constitutional theories: legal positivism, reflective equilibrium, and the stability that comes from an overlapping consensus. In doing so, it also provides the most in-depth analysis of the nature of practice-based constitutional theories to date.
The justifications usually offered by practice-based theorists reflect the influence of H.L.A. Hart and John Rawls on American constitutional theory. Although each justification is sophisticated, none can bear the normative weight that would justify conforming constitutional theories to our social practices. A constitutional theory cannot ignore our social practices, but it is the theory that can justify those practices, not the other way around.
author. Associate Professor of Law, The Catholic University of America, Columbus School of Law. I thank Lawrence Alexander, William Baude, Mitchell Berman, Richard Fallon, Samuel Freeman, Stephen Sachs, Lawrence Solum, Paul Weithman, and the participants of the 2023 National Conference of Constitutional Law Scholars (especially Rachel Bayefsky, Anya Bernstein, Andrew Coan, Tara Grove, Daniel Rauch, and Jed Shugerman) for comments on earlier drafts. I also thank Samuel Bray, Marc DeGirolami, Sherif Girgis, V. Bradley Lewis, Jeffrey Pojanowski, and Lawrence Solum for helpful conversations or email exchanges. Finally, I thank Catherine Cook, Dawn Sobol, and Steve Young for outstanding research assistance.
American constitutional theorists commonly assert that a viable constitutional theory must “describe and explain” the “actual process of constitutional interpretation.”1 Theories are said to be deficient insofar as they contradict “what we actually do” in adjudicating constitutional disputes,2 are “incompatible with the bulk of legal practice,”3 or cannot give a “plausible account of American constitutional practice.”4 The essence of this view is that a constitutional theory should generally conform to our social practices. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory.5 This kind of argument, which “[p]roceed[s] from th[e] assumption” that “the foundation of the constitutional order inheres in the facts of social practice,” is characteristic of what Richard H. Fallon, Jr., has called “practice-based constitutional theories.”6 These theories come in originalist7 and nonoriginalist8—as well as conservative9 and progressive10—varieties. Indeed, it is fair to say that the vast majority of the most influential constitutional theories are practice-based.11
Insofar as practice-based constitutional theorists are simply trying to provide an accurate description of how our constitutional system works, there is nothing particularly controversial about their insistence that constitutional theories reflect our social practices. Philip Bobbitt’s famous description of the modalities of constitutional adjudication12 could be understood as an example of this purely descriptive enterprise: an attempt to better understand how courts in fact resolve cases, irrespective of how they should resolve cases.13 But practice-based constitutional theorists often go beyond purely descriptive claims to make normative claims. They do not just argue that their constitutional theories accurately describe our existing social practices. They argue that a constitutional theory that does not accurately describe our existing social practices is a less normatively sound theory. Ronald Dworkin, for instance, argued that a constitutional theory that “provide[s] the best constructive interpretation of the community’s legal practice”14 gives the law greater “moral authority.”15
But from a normative perspective, why should we care whether a constitutional theory contradicts our current social practices? What if our current social practices are mistaken? For example, practice-based constitutional theorists often point to Brown v. Board of Education16 as being so embedded in our social practices that any theory contradicting Brown is illegitimate.17 But if we were having this conversation in the early twentieth century, we might very well regard Plessy v. Ferguson18 as deeply embedded in our social practices.19 What seems to matter is that Brown was emphatically right and Plessy was emphatically wrong, not the extent to which either case is or was part of our social practices.20
Of course, this example oversimplifies the claims of practice-based constitutional theorists and elides all sorts of important questions. What counts as part of our “social practices”?21 By what standard are we assessing whether a practice is right or wrong, legitimate or illegitimate?22 But the point of the example remains: the reason we think Brown was rightly decided does not turn on whether Plessy was deeply embedded in our social practices. We are quite ready to say that Brown was right even if Plessy was an established part of our social practices. And if that is true of Plessy, why would it not also be true of other social practices? In short, why should we care—as a normative matter—about whether a constitutional theory conforms to our social practices?
That normative question demands a normative answer.23 To say that constitutional theories ought to conform to a social practice because that practice is our existing way of doing things is to overlook the distinction between descriptive and normative claims,24 a basic distinction that constitutional theorists generally recognize as valid.25 Yet, despite the importance and pervasiveness of practice-based constitutional theories, scholars have paid very little attention to their ostensible normative justifications in a systematic way.26 To be sure, practice-based constitutional theorists have offered reasons why we should care about social practices, but there has been almost no examination of whether the reasons usually offered actually support the weight that these theorists accord to social practices.
The time is ripe for such an examination, particularly as we appear to be entering a period of rapid and significant change in the practices surrounding constitutional adjudication. As numerous scholars have observed,27 the Supreme Court’s recent cases have generally indicated a shift toward “text, history, and tradition” over other methods.28 Dobbs v. Jackson Women’s Health Organization held that there was no constitutional right to an abortion “because such a right has no basis in the Constitution’s text or in our Nation’s history.”29 New York State Rifle & Pistol Ass’n v. Bruen held that the test in Second Amendment cases is “whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”30 And Kennedy v. Bremerton School District held that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’”31 These are just a few important examples from the October Term 2021, and the shift they represent has the potential to challenge the conventional view among many practice-based theorists that the Court “has never established a priority or ranking of . . . different methods of interpretation.”32
The Court’s move toward more history-focused methodologies underscores that “[c]onstitutional practice changes.”33 As Fallon has observed: “[S]hifts in the balance of power on the Court can have profound effects in unsettling and then sometimes resettling norms of interpretive practice. Transformation has happened before. It could happen again.”34 Much like Brown signaled a change in our social practices, so too does Dobbs. But, again, should our assessment of such cases depend on whether our social practices have changed, and if not, what does that tell us about the relationship between the descriptive and normative claims of practice-based theories?
These are important questions that call for a thoroughgoing examination of the normative foundations of practice-based constitutional theories. That is the task of this Feature: to identify and examine the justifications that many of the leading practice-based constitutional theorists give for conforming their theories to our social practices. In doing so, the Feature provides the first full-length treatment of practice-based constitutional theories.35 At the same time, the scope of the Feature is limited in at least one important respect: I focus on the justifications that practice-based theorists give for adopting a practice-based approach to constitutional theory in principle. I do not examine whether, assuming one has already adopted such an approach, there are good reasons for favoring any particular practice-based theory over other practice-based theories.36
When we turn to reasons for adopting practice-based theories in principle, three justifications stand out from the literature: (1) the concept of law found in legal positivism, (2) the justification of beliefs achieved through reflective equilibrium, and (3) the stability that comes from an overlapping consensus. Each of these justifications is sophisticated, reflecting the influence of the jurisprudential and political theories of H.L.A. Hart37 and John Rawls.38 But as I will argue, none of them provides a compelling normative reason to conform constitutional theories to our social practices. That is true even if one accepts the Hartian and Rawlsian concepts that undergird these justifications. Nothing in my argument depends on rejecting legal positivism, the process of reflective equilibrium, or the importance of stability. My point, rather, is that these justifications for practice-based constitutional theories are insufficient on their own terms. They are transient justifications—justifications that, despite looking, at first glance, like answers to our normative question, only point us to other normative justifications that lie outside of themselves. It bears emphasizing that I will not be examining all possible justifications for practice-based theories, only the most common justifications that have in fact been offered. Nor will I be critiquing all justifications for practice-based theories, only those that fail on their own terms. For example, while I briefly discuss Burkean justifications for practice-based theories, I do not make them the focus of my critique, since they (unlike the other justifications examined below) could, if accepted, suffice to justify a practice-based theory.39
Before we can dive into the justifications for practice-based constitutional theories, however, we need to understand what they are. Part I provides an overview of the nature of constitutional theories in general and of practice-based constitutional theories in particular. It offers a novel explanation of the relationship between the descriptive and normative components of constitutional theories,40 which helps clarify what makes practice-based constitutional theories distinctive,41 and it lays the foundation for the most in-depth analysis of the nature of practice-based theories to date.
Parts II-IV, in turn, examine each of the three main justifications for practice-based constitutional theories. I begin in Part II with legal positivism, which is the most straightforward example of a transient justification. Legal positivism is a theory about what law is. It claims (in its most common manifestation) that law is fundamentally a matter of social fact.42 Practice-based theorists are often legal positivists;43 yet, precisely because positivism offers itself as a purely descriptive account of what law is, it has no internal normative premises that can justify adherence to the social practices by which it defines law.44 It necessarily relies on some normative argument outside of legal positivism to justify obeying our social practices.45
Part III takes up reflective equilibrium, whose transient nature is less obvious than legal positivism’s. Reflective equilibrium describes the state of coherence among our beliefs about everything from the ethical framework we adopt (e.g., utilitarianism) to the considered judgments we make about specific questions (e.g., racial discrimination is wrong).46 The idea is that, insofar as a person achieves reflective equilibrium, they are justified in holding the beliefs that they have brought into coherence.47 Using this concept at a society-wide rather than a personal level, practice-based constitutional theorists often treat our social practices like considered judgments that need to be brought into coherence with each other and with broader moral and theoretical considerations, and the resulting equilibrium purportedly proves that our practices are justified.48 But the justificatory function of reflective equilibrium requires that all of a person’s beliefs—and, in the case of practice-based constitutional theories, all of our social practices—be subject to revision.49 This revisability is incompatible with the nature of practice-based theories, which assume that some of our social practices are fixed and unchangeable. Because practice-based theories cannot subject all practices to revision, they cannot achieve a true reflective equilibrium that would give us good reason to think that practice-based theories are justified.50 When practice-based constitutional theorists seek coherence in the law, what they are really seeking is not a state of reflective equilibrium; it is a coherence that serves some freestanding normative goal. And it is that normative goal—not the coherence of the law—that they think ultimately justifies their theory.51 Despite invoking reflective equilibrium, practice-based constitutional theorists cannot actually rely on it. They rely on some other normative value that is served by coherence with our social practices.
This leaves Rawls’s notion of an overlapping consensus as a means of achieving stability, which is the subject of Part IV. I provide a detailed explanation of Rawls’s overlapping consensus and the role it plays in his overall theory below,52 but the basic concept is that each person should be able, for their own internal reasons, to agree on the principles of justice that Rawls advocates.53 This “overlapping consensus” on the basic principles of justice, in turn, ensures the stability of these principles in a society otherwise deeply marked by reasonable disagreement.54 But whereas Rawls employed an overlapping consensus on the principles of justice, practice-based constitutional theorists employ an overlapping consensus on our social practices, and whereas Rawls hoped to secure the stability of the principles of justice, practice-based constitutional theorists hope to secure the stability of our constitutional order.55 This difference in the object of the overlapping consensus produces a difference in the kind of stability achieved. Because Rawls was concerned with the stability of principles that he had (in his view) demonstrated to be just, the stability he sought to achieve would be a normatively attractive stability—the stability of just principles.56 By contrast, the stability of our constitutional system is only normatively attractive insofar as our system is itself normatively justified, and showing that our system is normatively justified requires a separate argument.57 In other words, mere agreement on various social practices that constitute our legal system does not, by itself, give us a good reason to think that our social practices are justified; they might very well be morally appalling. An overlapping consensus on our social practices might be conducive to the stability of our constitutional system, but that is not a good reason—by itself—to adhere to those practices.
At the same time, it would be wrong to say that the stability of our constitutional system is irrelevant to a sound theory of constitutional adjudication, and that stability depends (at least in part) on the extent to which a theory of constitutional adjudication reflects our social practices. Part V concludes with a sketch of some preliminary thoughts on the appropriate role of stability considerations in constitutional theory. The upshot is that social practices are relevant—but ultimately answerable—to the normative justifications that undergird a sound constitutional theory.
There is, in short, an is/ought problem with many of the most important practice-based constitutional theories. That is not to say that all practice-based theories suffer from this flaw; some do not.58 Nor is it to say that the theories I examine are irremediable; it is conceivable that they could be supplemented with normative arguments that, if accepted, would justify them (though perhaps in altered form). Indeed, some of the theorists who rely on one or more of the three justifications discussed below offer other normative justifications, but those justifications are generally thin and underdeveloped.59 Nonetheless, most of the leading practice-based theorists adopt one or more of the justifications examined below, and the weakness of these justifications calls such theories into question.