Keeping it real in constitutional theory

Abstract

In constitutional theory, we are familiar with the claim that a good theory must ‘fit’ and justify constitutional practice. However, the criterion of ‘fit’ sometimes gets lost in the quest to provide a bold normative theory about what constitutional law should be. Using the debate about the legitimacy of constitutional judicial review as an example, this article warns against a problematic disjuncture between theory and practice in the domain of constitutional law. The key argument is that credible normative theorizing about constitutional law should rest on a descriptively plausible foundation. Absent such grounding, there is a risk that our theories of constitutionalism become theories of a fiction. To avoid this hazard, we need to ‘keep it real’ in constitutional theory and comparative constitutional law.