How To Choose A Theory of Constitutional Interpretation
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In moral and political philosophy, some people emphasize the importance of searching for “reflective equilibrium,” in which (broadly speaking) general principles align with convictions about particular cases, and vice-versa. There is a close analogue in constitutional law; the search for reflective equilibrium plays a central role. Some theories of constitutional interpretation seem to call for results that are inconsistent with “fixed points” in constitutional law (where “fixed points” are understood as particular holdings, such as Brown v. Board of Education, to which people have exceedingly strong commitments). The risk to fixed points strongly counts against such theories. The reason is that among the reasonable candidates, any theory of interpretation must be defended on the ground that it would make our constitutional order better rather than worse. It follows that if a theory would lead to rejection to fixed points, it has a clear strike against it. Many participants in debates about constitutional theory implicitly agree on this point, and they had better; there is no way to choose a theory of constitutional interpretation that refuses to seek reflective equilibrium, which means that consideration of fixed points is essential.
Join us for Professor Cass Sunstein’s lecture, with commentary from former SLS Dean Larry Kramer and Professor Michael Ramsey. SLS Professor Bernadette Meyler will moderate.
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Cass R. Sunstein Cass R. Sunstein is currently the Robert Walmsley University Professor at Harvard. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. In 2020, the World Health Organization appointed him as Chair of its technical advisory group on Behavioural Insights and Sciences for Health. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs, and after that, he served on the President’s Review Board on Intelligence and Communications Technologies and on the Pentagon’s Defense Innovation Board. Mr. Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy. He serves as an adviser to the Behavioural Insights Team in the United Kingdom. |
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Larry Kramer (Commentator) Larry Kramer has been President of the William and Flora Hewlett Foundation since 2012. Under his leadership, the foundation has maintained its commitment to areas of enduring concern, while adapting its approaches and strategies to meet changing circumstances and seize new opportunities. He has, at the same time, been instrumental in launching new efforts to respond to pressing and timely problems, such as challenges related to democracy and cybersecurity. |
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Michael Ramsey (Commentator) Professor Ramsey clerked for Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit and for Justice Antonin Scalia of the U.S. Supreme Court. He practiced international business law with the firm of Latham & Watkins before joining the USD School of Law faculty in 1995. Professor Ramsey has taught as a visiting professor at the University of California San Diego (department of political science) and the University of Paris-Sorbonne (department of comparative law) and has lectured in Australia, Denmark, the Republic of Korea, Kuwait, Mexico and South Africa. |
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Bernadette Meyler (Moderator) Bernadette Meyler, JD ’03, is a scholar of British and American constitutional law and of law and the humanities. She is also a 2020 Guggenheim Fellow in Constitutional Studies. Her research and teaching bring together the sometimes surprisingly divided fields of legal history and law and literature. They also examine the long history of constitutionalism, reaching back into the English common law ancestry of the U.S. Constitution. |
