Abstract
Ambtion was an essential ingredient in James Madison's prescription for good government. The sentence above describes the system of constitutional government Americans have inherited from Madison's generation. Day in and day out, four combatants -- the three branches of the federal government and the People -- duke it out in the prescribed arena known as the American system of checks and balances. Each combatant's ambition --their desire for public or private power and for satisfaction of personal wants or needs -- puts them on guard against actions of the others. If any combatant tries to grab power at the expense of another, the others are constitutionally armed to defend themselves. It is in the fire of this furnace, not in the ether of academic theory, that the Constitution's meaning is forged.
Yet, constitutional scholars from such varied positions as Laurence Tribe and Robert Bork have, at one time or another, joined the hunt for a grand theory of constitutional law. Like the elusive Grand Unifying Theory sought by physicists, a grand theory of constitutional law would ideally organize and discipline constitutional adjudication, and would explain and justify all constitutional results that likeminded members of the community of constitutional lawyers deem correct. Many grand theorists argue that their own theories have strong claim to legitimacy because they are either most consistent with or required by the Constitution. Admittedly, this is a tall order for any such theory, and no author has yet made a persuasive claim to have created a grand theory that does so.
This Article takes a contrary view: The Constitution does not require or prefer any particular theory of constitutional interpretation. Indeed, a rejection of grand constitutional theory can be inferred from aspects of the Constitution's structure and history. To be clear, my argument is not that the framers, ratifiers, or other founding decision-makers specifically rejected grand constitutional theory; they likely never considered the point. Rather, working from the government structure the framers established, their expressed understanding of certain institutions (for example, the qualifications and role of federal judges), and an understanding of law and legal reasoning, we can infer that the Constitution neither requires nor supports the quest for a grand theory of constitutional law.