Lawrence B. Solum (University of Virginia School of Law) has posted For Constitutional Theory (forthcoming in the California Law Review) on SSRN. Here is the abstract:
Since the publication of James Bradley Thayer’s “The Origin and Scope of the American Doctrine of Constitutional Law” in 1893 there has been an outpouring of theorizing about constitutionalism in the American context. This article argues in favor of normative constitutional theory, the enterprise of thinking rigorously about constitutionalism. The article proceeds in three Parts. The first part answers the question, “What is normative constitutional theory?,” by exploring relationships between moral philosophy, political theory, and normative theorizing about law.
The second part identifies the functions of normative constitutional theory, which include (1) the provision of standards for evaluating constitutional practice and (2) imaging new constitutional possibilities.
The third part makes the affirmative case for normative constitutional theory in general and originalism in particular. Constitutional practice that discloses its normative foundations is superior to constitutional opportunism, which hides results-oriented jurisprudence behind a facade of insincere rationalizations. The case for constitutional originalism is framed by a comparison with constitutional pluralism and consists of arguments that originalism better realizes the rule of law and constitutional legitimacy.
I was honored to present this paper at the Jorde Symposium on October 20, 2026. My paper responds to “Against Constitutional Theory” by Dean Erwin Chemerinsky. All the papers from the symposium will be published in the California Law Review. I have plenty of time for revisions. Please send comments to lsolum@gmail.com.