A Grand Theory of Constitutional Law

Jeb Rubenfeld’s book is nothing if not ambitious. In just 250 pages, Rubenfeld seeks to: justify the authority of the Constitution, establish the legitimacy of judicial review, resolve the countermajoritarian difficulty, offer a method of constitutional interpretation and judicial review, uphold the constitutionality of affirmative action, and explain the legitimacy of judicial protection of privacy, including abortion rights. Scattered throughout the book, he offers philosophical insights as to the meaning of life, discussing a central issue for all of us: dealing with time. Rubenfeld’s book is elegant, relying on history, continental philosophy, game theory, and even Supreme Court cases, to support his theory. As a reader, I very much want for Rubenfeld to succeed. I agree with almost all of his conclusions. No doubt, it would be wonderful to have a theory that resolves the counter-majoritarian difficulty, justifies nonoriginalist judicial review, and supports affirmative action and abortion rights. If Rubenfeld succeeded, progressive law professors could forever retire from engaging in constitutional theory, except to refine, apply, and defend his approach. And if this is not enough, Rubenfeld claims to accomplish this by rejecting all of the constitutional theories that have been previously developed. The book jacket quotes Bruce Ackerman as stating, “This brilliant book heralds a new era in constitutional thought.” Unfortunately, if Rubenfeld’s claims seem too good to be true, it is because they are. On careful examination, many key steps in Rubenfeld’s argument have serious problems. Some aspects of Rubenfeld’s analysis are simply rephrasings of familiar arguments in constitutional theory. Others, such as his “paradigm case” theory of judicial review, are so inadequately developed as to be of little help in understanding how courts should decide cases.