Thinning Out Structural Theory

Abstract

In this article, I argue that we can construct a new kind of account of constitutional doctrine, in which courts implement a handful of abstract norms — for example: “states may not undermine the constitutional structure” — with different doctrinal devices depending on the practical problems of implementation in different contexts. The central insight is that if we look carefully, we can find patterns in the forests of convoluted constitutional doctrine. These patterns suggest deep and long-lived consensuses on certain fundamental constitutional requirements; and we can explain a great deal of constitutional doctrine with these basic consensus norms and jettison standard justifications that make many of these doctrines controversial. This is surprising, and runs against the conventional picture of constitutional theory and practice as dominated by battles between incommensurable theories of value or constitutional interpretation. This account is preferable to conventional views on criteria for selecting among competing theories developed in the philosophy of science: It is consistent with our best general theory of law, legal positivism; it can advance constitutional theory beyond the interpretive debates in which the research program often seems mired; and it is simpler, more capacious, and more fruitful for future research than conventional accounts. At a time when it seems that we are fundamentally divided on nearly every constitutional question, this approach can begin dispelling this appearance by providing an alternative to constitutional theory’s traditional focus on interpretive and value controversies and by countering the increasing politicization of constitutional questions with evidence that we actually agree on important constitutional matters.