Herbert Wechsler's Complaint and the Revival of Grand Constitutional Theory

Publication Year
2000

Type

Journal Article
Abstract

Constitutional theory since the mid-1950s has been centrally concerned with justifying and guiding the practice of judicial review as it has been exercised since Brown v. Board of Education. Herbert Wechsler helped lay out this theoretical agenda with his complaint that the Court's opinion in Brown was not sufficiently concerned with adhering to traditional legal and judicial principles, and constitutional theory has been driven by the concern to provide legal justifications for such judicial actions. An alternative tradition in constitutional theory is represented by works such as Mark Tushnet's Taking the Constitution Away from the Courts. This alternative constitutional theory is less concerned with how the Court should interpret the Constitution than with how various political actors construct and implement the Constitution. Rather than assuming the perspective of a single political actor, the Court, this theoretical tradition probes more deeply into the normative and empirical puzzles associated with constitutional government.

Journal
University of Richmond Law Review
Volume
34
Issue
2
Pages
509-543