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72 Minn. L. Rev. 1331 (1987-1988)
Legal Pragmatism and the Constitution

handle is hein.journals/mnlr72 and id is 1341 raw text is: Legal Pragmatism and the Constitution Daniel A. Farber* [T]he law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism .... I Almost all constitutional law courses begin with Marbury v. Madison.2 Thus, the first topic on the agenda is the legiti- macy of judicial review. A casual reader of law reviews might well conclude that today this is not just the first but the only issue on the agenda of constitutional scholars. The dominant approach to constitutional law is to attempt to construct a the- ory of judicial review.3 Such a theory, if successful, would pro- vide constitutional law with a firm theoretical foundation that would justify judicial review and dictate its parameters.4 The attempt to create a theory of judicial review is so prevalent to- day that it is sometimes difficult to imagine an alternative anal- * Henry J. Fletcher Professor of Law, University of Minnesota; Visiting Professor, Stanford Law School. An earlier version of Part I of this Article was presented as the inaugural lecture for the Fletcher Chair on November 6, 1987. I would like to thank Dan Conkle, Bill Eskridge, Dianne Farber, Phil Frickey, Tom Grey, Richard Posner, and Suzanna Sherry for their helpful comments on earlier drafts. 1. 0. HOLMES, THE COMMON LAw 36 (1881). 2. 5 U.S. (1 Cranch.) 137 (1803). Many leading constitutional law casebooks place Marbury near the beginning. See G. GUNTHER, CONSTITU- TIONAL LAw 2 (11th ed. 1985); W. LOCKHART, Y. KAMISAR, J. CHOPER & S. SHIFFRIN, CONSTITUTIONAL LAw 1 (6th ed. 1986); R. ROTUNDA, MODERN CON- STITUTIONAL LAw 1 (1981). 3. Many such theories exist. See, e.g., J. ELY, DEMOCRACY AND DISTRUST 105-83 (1980) (representation-reinforcing theory of judicial review); M. PERRY, THE CONSTITUTION, THE COURTS AND HUMAN RIGHTS 91-145 (1982) (noninter- pretive review in human rights cases); Linde, Judges, Critics, and the Realist Tradition, 82 YALE L.J. 227 (1972) (legal realism); Sandalow, Judicial Protec- tion of Minorities, 75 MICH. L. REV. 1162, 1183-95 (1977) (process-based theory of judicial review); Wellington, History and Morals in Constitutional Adjudi- cation (Book Review), 97 HARV. L. REv. 326, 326-27 (1983) (reviewing M. PERRY, THE CONSTITUTION, THE COURTS AND HUMAN RIGHTS (1982)). An ex- cellent critique of this trend toward grand theory can be found in Kaufman, Judges or Scholars: To Whom Shall We Look for Our Constitutional Law?, 37 J. LEGAL EDUC. 184, 185-91, 193-202 (1987). 4. For an unusually explicit call for such a theory, see Ackerman, Be- yond Carolene Products, 98 HARV. L. REv. 713, 743-46 (1985) (calling for the fashioning of a legally cogent set of higher-law principles). 1331

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