Second-Order Constitutional Theory
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A sophisticated legal thinker who wishes to work out a fully developed approach to constitutional adjudication must choose two theories, not one. The first choice is familiar. What is the best approach for finding right answers to constitutional disputes? The leading competitors are familiar, too: theories such as originalism, pluralism, moral readings, and common law constitutionalism. It turns out, though, that a sophisticated legal thinker must also make a second theoretical commitment. For unless one takes the implausible view that every single case is an evidentiary wipeout under their preferred first-order theory, something more will sometimes be necessary to decide a case. That something is a second-order theory of constitutional adjudication: a theory that does not purport to make any interpretation more (or less) correct, constitutionally speaking, yet still guides a decisionmaker after their preferred first-order interpretive theory has run out. In this constitutional conversation, Professor Aaron Tang will make the case for greater attention to the choice among second-order constitutional theories. He will argue that the unspoken, second-order theory embraced by today’s Supreme Court—the 51-49 rule, under which each justice votes for the outcome they think is supported by more first-order evidence than any other outcome, no matter how slight the difference—is as responsible for the acrimony over today’s Court as the first-order clash between originalism and its competitors. That claim, if proven, creates an intriguing possibility: armed with a better second-order theory, judges who disagree vehemently over how to interpret the Constitution might still find their way to consensus in some of the most weighty and difficult cases of the day.
Professor Tang’s forthcoming article, which forms the basis of the presentation, is available here.
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Aaron Tang is a law professor at the University of California, Davis and former law clerk to Justice Sonia Sotomayor. His academic writings have been published in journals such as the Stanford Law Review, Chicago Law Review, Columbia Law Review, and Pennsylvania Law Review, and his public writings have appeared in The New York Times, Washington Post, Los Angeles Times, The Atlantic, and elsewhere. He is the author of Supreme Hubris: How Overconfidence is Destroying the Court—and How We Can Fix It (Yale University Press, 2023), and he is the host and moderator of PBS’s newest, Emmy-nominated TV series, Breaking the Deadlock, which Variety magazine called “more erudite than The West Wing and more intense than 24.” |
