I really like this post from Balkinization, and strongly recommend both 2301 and 2302 students to read it. The author - J. Harvie Wilkinson III - is a judge on the United States Court of Appeals for the Fourth Circuit.
He argues that attempts to develop legal theories to succinctly encapsulate the meaning and intent of the Constitution fall short. Why?
Perhaps it is because the Constitution is not at bottom an abstraction. It is by nature less amenable to theory than to the experience that ground-level governance represents. Moreover, the Constitution was designed to resist answers and incorporate tensions rather than yield its secrets to a single or comprehensive viewpoint. The problem is that cosmic constitutional theories can falsely suggest simple answers to intractable problems, thereby abetting judicial hubris. The theories supply ingredients of appropriate constitutional interpretation, but only ingredients. To see them as answers is to succumb to the notion that a document as complex as the Constitution can somehow be bottled and pasteurized.
If I understand this correctly, the pragmatic nature of the Constitution makes it resistant to abstract principle. Yes it may be argued that abstract principles exist in the document, but they are complex. One set may not necessarily compliment another. he further argues that the attempt to do so makes the preservation of democratic liberty difficult.
The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk. The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time. In turn, the courts’ eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious. This state of affairs is exactly backwards. In a democracy, courts protect individual rights and personal liberties, but they are not, and should not be, the primary agents of social change. It is the people at the ballot box who should decide, not the people wearing black robes—the many, not the few.
He also, very helpfully (for me at least), listed dominant theories of interpretation and the authors responsible for developing them - I'll add these to my power points where appropriate:
living constitutionalism: William Brennan
originalism: Robert Bork
political process theory: John Hart Ely
textualism: Hugo Black
minimalism: Cass Sunstein
cost-benefit pragmatism: Richard Posner
active liberty: Stephen Breyer
moral readings: Ronald Dworkin
