The Failure, and Future, of Constitutional Theory

Crosspost from Balkinization

Constitutional theory is in need of a paradigm shift.  It is obviously important to articulate an inspiring vision of what the country is and what we want the country to be, one that has the moral force and clarity to attract the kind of political support needed for meaningful policy change.  I agree wholeheartedly with the contributors to the Constitution in 2020 volume that constitutional law has a crucial role to play in this regard.  But in exalting constitutional law as an expression of nationhood and identity, and elevating the Constitution to the level of civic religion, we risk losing sight of a fundamental truth: constitutional law is, like any other form of law, an instrument of policy and a form of social technology.  It is no small matter to engineer peace and prosperity on a national and even international scale.  Yet a successful constitution is precisely such a feat of engineering.  Consider the most grievous calamities of the last century.  War, famine, genocide: we have not nature, but rather the failure of our methods and institutions for resolving disputes and allocating resources, to blame for these.  In other words, it is our technologies of government that fail us catastrophically.