Recovering the Lost Pragmatist Promise of Legal Process by Emily F. Regier
Legal Process Theory, a process-focused jurisprudential framework that predominated in the American legal academy in the 1950s with lasting influence on American constitutional development, has for decades since been depicted as a complacent and relativistic jurisprudence, designed to evade controversial value judgments by seeking substantively neutral determinacy in matters of process. I upend this wrongful narrative by recovering the inspiration that Legal Process thinkers took from John Dewey’s democratizing approach to pragmatism, and in particular, from Dewey’s commitments to the interconnection of fact and value and the moral productivity of deliberative and collaborative processes. I argue that Dewey’s rightful influence on Legal Process Theory has been obscured by prominent left-leaning academic accounts that erroneously attribute to him value relativism and a depoliticizing relativist theory of democracy, which Legal Process thinkers supposedly repurposed for the legal domain. But Dewey rejected ethical and intellectual relativism; he also rejected absolutism. I argue that the Legal Process thinker Lon Fuller followed Dewey’s democratizing pathway through these extremes and adapted it to legal theory. I further connect Fuller’s Deweyan jurisprudence to the canonical mid-century Legal Process text written by Henry Hart and Albert Sacks, and to the legal pragmatism espoused by former U.S. Supreme Court Justice Stephen Breyer. Following Dewey, Legal Process thinkers mounted a compelling and synthetic yet underappreciated response to the difficult questions raised by Legal Realism about moral and legal relativism and the relationship between judicial and democratic decision making.
“Perpetuate the Union, and Redeem the Honor of the Republican Name”: Monarchy, Empire, and James Madison’s Negative on State Laws by Zachary Brown
In 1787, James Madison proposed that Congress should wield a “negative” over state laws. Historians, legal scholars, and political theorists have long argued that this veto was the linchpin of his plan for constitutional reform: the mechanism through which the federal government would suppress irresponsible state legislation, especially laws that infringed on individual and minority rights. According to the standard account, Madison’s support for the negative as a check on majoritarianism is emblematic of his deepest constitutional commitments. While other leading nationalists focused primarily on creating a strong federal government, Madison was chiefly concerned with rescuing democracy within the states by curbing the vices of local legislatures. My article argues that this conventional story about the negative—and Madison’s constitutional thought more broadly—is incomplete. Throughout the spring and summer of 1787, Madison’s principal interest was reconciling national power and stability with republican government. His research on confederal and imperial models suggested that only the prerogatives of monarchs had protected federations against the centrifugal force of their parts. Madison came to believe that without these prerogatives, even a strong general government would become impotent and the confederation it governed would dissolve. The negative was his attempt to find an equivalent power to harmonize the union without adopting a monarchy. Madison’s celebrated theories on minority rights and faction developed as he worked out why a national republic could exercise both the negative and its other powers responsibly. Yet the Convention ultimately rejected both the veto and the Madisonian vision of federalism it underpinned. As a result, Madison left Philadelphia convinced that the delegates had created a “feudal system of republics” lacking a replacement for the unifying power of kings.
The Birth of Compact Theory by David S. Schwartz
For claims about constitutional interpretation that hinge on the Constitution’s “original meaning,” it matters whether members of the Philadelphia Convention, or the state ratifying conventions, or the early post-ratification congresses, asserted that the Constitution was a compact of the states; or whether, instead, compact theory was a novelty that gained adherents only much later.
--Dan Ernst
