• Does Constitutional Law Have a Future?

    Caitlin Tully
    Michigan State Law Review
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    Over the past several years, constitutional law scholars have struggled to repudiate what many see as the anti-constitutionalism let loose by the Trump administration. Scholars have put forth a range of proposals – from legislation that assumes a popular mandate, to constitutional amendment, to dispensing with constitutional law altogether – in response to this and related concerns. Strikingly, however, this recent turn sidelines substantive constitutional interpretation. As a result, these responses risk conceding the failure of constitutionalism even as they attempt to remedy it. This essay argues that the current impasse is not because constitutional law is inherently doomed to failure. Instead, it reflects blinders left in place by constitutional theory, the fundamentals of which we have not revisited in decades. This essay argues that scholars remain tethered to a binary between countermajoritarianism and popular constitutionalism, both of which recent experience has called into question. Popular constitutionalism’s well-documented inattention to both the specifics of legal argument and separation of powers renders it compatible with the fusion of populism and executive speech on which Trumpist politics relies; countermajoritarianism’s emphasis on courts as supreme interpreters of the law struggles in the face of the basic bad faith many see at the Court. Discussing Akhil Amar’s recent book, “The Words That Made Us: America’s Constitutional Conversation,” as a jumping-off point, I ask how we might think about the seeming failure of interpretation going forward. I argue that it would be a mistake to see the above theoretical lenses as coterminous with the possibilities of interpretation. History shows that substantive interpretation has taken different forms before; it may still yield results if, along with the theory underlying it, it can be reconfigured for the present.
    A correction has been made to the original version of this publication. The original publication, as posted on 11/22/2022 failed to mention that this essay was first delivered as a talk at a symposium on Akhil Reed Amar's "The Words that Made Us: America's Constitutional Conversation, 1760-1840," held at the University of Illinois College of Law on September 17, 2021, and was submitted for publication in Spring, 2022.
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