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).

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