Title

The Place of Structural Arguments in Contemporary Constitutional Theory

Abstract

This essay illustrates how our interest in questions of constitutional doctrine makes it difficult to assess structural arguments about judicial authority. In the past forty years, we have witnessed a shift in American constitutional theory. Scholars once assessed judicial authority based on their expectations of how judges should decide cases. In time, many concluded that discretion is an inevitable consequence of constitutional interpretation and therefore sought to justify such authority.

This shift has led some scholars to give greater emphasis to structural arguments. They identify institutional virtues that explain the judiciary’s role in a well ordered government. Although these scholars are less concerned than their predecessors with how judges should interpret the Constitution, many retain the doctrinal focus of the earlier generation. This essay identifies problems that follow from this focus.

Section I traces the evolution in Ronald Dworkin’s approach to questions of judicial authority. Dworkin’s work provides a notable example of how doctrinal claims become entangled with structural arguments and confuse our assessment of judicial authority. Section II contrasts Dworkin with scholars who have made claims in which the doctrinal and structural aspects are more readily distinguished. Section III examines the First Things Symposium, in which prominent conservative scholars attack the kind of judicial activism that Dworkin justifies. But the Symposiasts assess judicial authority from the same doctrinal perspective as Dworkin and provide a vivid illustration of how doctrinal controversies obscure structural arguments. Section IV concludes the essay by examining implications this analysis has for debates in constitutional theory.

Disciplines

Constitutional Law

Date of this Version

February 2006