Catholic Law Professor J. Joel Alicea recently posted his article, “Liberalism and Disagreement In American Constitutional Theory.” Now available online, the article will appear in Virginia Law Review, Vol. 107 (forthcoming Dec. 2021). Alicea’s work reframes American constitutional theory—identifying problems with the “standard approach,” exploring the concept of liberalism, and addressing counter-arguments and objections to this new theoretical approach. Richard Fallon, Story Professor of Law at Harvard Law, reviewed and commented on Alicea's paper earlier this spring as part of Alicea's presentation to the faculty through the Catholic Law Faculty Research Series.
Virginia Law Review
By: J. Joel Alicea
Date: Forthcoming December 2021
Liberalism and Disagreement In American Constitutional Theory
For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused around the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate about two propositions that are central to the liberal tradition: individualism and rationalism. Viewed in this way, constitutional theorists often thought to be opposed to each other are, in fact, allies in the debate over liberalism, even if they disagree about whether their shared theoretical premises imply an originalist or non-originalist methodology. Conversely, theorists often seen as allies profoundly disagree about the premises of their constitutional theories because they disagree about liberalism. Reorienting American constitutional theory to focus on the disagreement over liberalism will help us identify which constitutional theory is best and better understand the outcomes in important constitutional cases.
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