Outcome Reasons and Process Reasons in Normative Constitutional Theory

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of their counterfactual implications for a handful of prior decisions of the Supreme Court. Among the many problems with “outcome reductionism” (exclusive reliance on outcome reasons) is the reality that none of the fundamental and feasible options for normative constitutional theory can guarantee outcomes that that most citizens would find acceptable, much less optimal. Living constitutionalism produces constitutional outcomes that reflect the moral values and political ideology of Supreme Court Justices, but over the long run there is no guarantee that the Justices will do what any individual believes is required by justice. Decades ago, the Justices established a constitutional right to abortion, but recently they reversed course. Dramatic changes in constitutional law are inevitable given that the Justices are selected by the President and Congress, institutions that will change their political makeup in unpredictable ways over time. Outcome reductionism is not a sensible method for normative constitutional theory, but there is a better approach. Outcome reasons can be supplemented by process reasons such as legitimacy, the rule of law, and institutional capacities. The way forward for constitutional theory involves a holistic assessment of both outcome reasons and process reasons via the method of reflective equilibrium. The way forward requires a frank acknowledgement of the consequences of deep and persistent disagreement about fundamental questions concerning justice and the common good. And therefore, the way forward will require an acknowledgement that a legitimate constitutional order will require compromise

Popular? Constitutionalism?

Larry Kramer has written an awesome book, and we mean awesome in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold. Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says boo to the ultimate constitutional authority of the courts and hooray to a populist tradition that empowers Presidents to act as Tribunes of the People and has even included constitutional interpretation by mob. Along the way, Kramer offers a rich and powerful interpretation of American constitutional history, exposing ideas that have long been submerged, and stimulating a fundamental reappraisal of the contemporary ascendancy of the United States Supreme Court as the ultimate and final expositor of constitutional meaning. This Review offers a critical assessment of The People Themselves. In Part II, we provide a brief recapitulation of the main themes of The People Themselves, tracing the story of popular constitutionalism from before the Revolution through the founding era to the present day. We then undertake in Part III a careful examination of Kramer\u27s central concept by answering the question, What is popular constitutionalism? From analytic reconstruction, we move to normative assessment in Part IV, which states the case in favor of judicial supremacy and against popular constitutionalism. In Part V, we conclude this Review with observations about the paradoxical nature of Kramer\u27s discussion of popular acceptance of judicial supremacy and an observation about the value of The People Themselves: Kramer\u27s book makes an important contribution to constitutional theory by pushing the idea of popular constitutionalism to its limits