Erwin Chemerinsky, The Inescapability of Constitutional Theory, 80 U. Chi. L. Rev. 935 (2013).
The Constitution inevitably must be interpreted. There are countless issues — such as whether the president can fire cabinet officials or rescind treaties or assert executive privilege — where the document is silent, but a constitutional answer is necessary. So much of the Constitution is written in broad language that must be given meaning and applied to specific situations. What "Commerce . . . among the several States" or "liberty" or "cruel and unusual punishments" or "equal protection of the laws" — and countless other phrases — are must be defined and applied. The assurances of freedom and equality in the Constitution are not absolute, and it is necessary to decide what justifications are sufficient to allow the government to infringe rights or discriminate. Obviously, for all of these reasons, courts must interpret the Constitution, but so must all government officials, all of whom take an oath to uphold the Constitution.
A constitutional theory is an approach that is used to interpret and give meaning to the Constitution. Over the last few decades, two competing constitutional theories have been originalism and nonoriginalism. Originalists believe that the meaning of a constitutional provision is fixed at the time of its adoption and is changeable only by constitutional amendment. Under this view, Article I of the Constitution means the same thing as it did in 1787 or the First Amendment means the same thing as it did in 1791, and nothing that has happened since should matter in deciding their meanings. By contrast, nonoriginalists believe that the Constitution’s meaning evolves by both interpretation and by amendment; loosely speaking, nonoriginalists believe in a "living Constitution." Of course, there are many variants of each of these approaches, and there are other constitutional theories as well. There is a huge scholarly literature debating these and other theories of constitutional interpretation.
Judge J. Harvie Wilkinson III, a former law professor and highly respected judge on the United States Court of Appeals for the Fourth Circuit, has written a provocative book arguing against constitutional theory. In it, he identifies several of the most prominent constitutional theories and presents powerful critiques of them. He concludes that "[w]hat’s needed is not yet another theory but an escape from theorizing" (p 115). He contends that constitutional theories have been harmful to democratic governance. He says that "the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive" (p 4).
In one sense, Judge Wilkinson is surely correct. Throughout American history, justices and judges have decided cases with-out having a "cosmic constitutional theory." In deciding constitutional cases courts always look at the Constitution’s text (which rarely provides answers), the Framers’ intent (if any can be ascertained), the structure of the Constitution, precedent, and social needs. The vast majority of constitutional cases have been decided without any invocation of a constitutional theory. Moreover, no theory ever has been developed for deciding what is a "compelling" or an "important" or a "legitimate" government interest, even though such determinations are at the core of litigation about individual rights and equal protection. No theory exists for deciding what is an “unreasonable” search or arrest, even though judges in courts across the country make that determination countless times everyday.
Yet, in another sense, Judge Wilkinson is profoundly wrong because there is simply no way to avoid a constitutional theory in deciding, or having views on, constitutional issues. Justices and judges — and executives and legislators — need to decide how they will go about giving the Constitution meaning. For example, as explained above, a fundamental question is whether the meaning of a constitutional provision is fixed when it is adopted or whether its meaning can evolve by interpretation; this deter-mines what materials and what arguments are even relevant in interpreting a constitutional provision. In deciding what is cruel and unusual punishment, should the focus be solely on what the Framers deemed objectionable or should the inquiry be about "evolving standards of decency"? There is no way to avoid that question, and whatever the answer, that is a constitutional theory. More generally, there needs to be an approach to deciding when courts should defer to the political process and when they should overrule it. This, too, is a constitutional theory. Judge Wilkinson’s underlying thesis — that constitutional theory is unnecessary and harmful (p 4) — is wrong because constitutional theory is inescapable.
This Review is divided into three parts. First, I briefly summarize Judge Wilkinson’s argument. Second, I argue that despite his protestations to the contrary, Judge Wilkinson has a constitutional theory; it is one that calls for great judicial deference to the elected branches of government. Third, I contend that Judge Wilkinson’s theory is neither defended nor desirable.