Chief Justice John Roberts (in)famously parodied the gap between the interests of judges and practising lawyers and those of academics by suggesting that the latter were unaccountably preoccupied by “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.” One law professor even jokingly took him up on the suggestion. But the real trouble, comparative constitutional scholar Aileen Kavanagh might say, is that constitutional law scholars would not even be interested in 18th-century Bulgaria. Categorical imperatives, sure; the people for whom they are to serve as universal laws, not so much.
Kavanagh wants to change that: she wants us “to ‘keep it real’ in constitutional theory.” Too much constitutional scholarship, she argues, is inattentive to the real world, to the flesh-and-blood individuals who inhabit it, and above all to the institutions that govern it. It busies itself with propounding normative theories derived, at best, from highly stylized models of reality, and disdains “mere” description of how things actually work. That’s not good enough, Kavanagh argues. Because “[t]he normative depends on the descriptive to a large degree…, constitutional theorists of all stripes would benefit from submitting their theories to a rigorous reality-check.” This is, it may be worth emphasizing, a concern with and an argument about scholarship, not adjudication. At most, as is noted below, more reality-based academic work may prove more useful to the courts than its more abstract counterpart.
Kavanagh’s examples of how unreal the most seminal scholarship, and the debates to which it gives rise, can be come from the abundant literature on the legitimacy of judicial review of legislation. Both Ronald Dworkin’s embrace of judicial review and Jeremy Waldron’s rejection of it invoke deliberately idealized representations of institutions they extol, and distinctly unfriendly, if not outright crude, depictions of the ones they condemn. The one “has very little to say about doctrinal constraints, constitutional remedies, and the limits of judicial expertise on polycentric questions.” In the other, “the dirty business of political bargaining and policy negotiation are airbrushed out [of] the picture.” Similarly, the “countermajoritarian difficulty” literature, beginning with Alexander Bickel’s work, neglects the comparative rarity of judicial review, let alone of cases where statutes are in fact struck down, when viewed against the overall volume of legislative output.
But these are, indeed, only examples of a much broader trend. One might adduce others, big and small. Picking up, first, on Kavanagh’s theme, one might observe that the literature on the legitimacy of judicial review is (almost?) entirely focused on rights-based questions, and neglects judicial review that serves (or fails) to enforce separation of powers rules or federal division of powers. Somewhat further afield, one could point out almost ritualistic denials that anything like originalism is ever practiced by courts outside the United States and perhaps Australia. Such denials neglect the complexities of the jurisprudence in Canada, the supposed home of living constitutionalism, and elsewhere. Conversely, one could also point out—and Adam Samaha has pointed out—that the ostensibly stark differences between originalism and its competitors often matter less than one might suppose. And these too are only examples drawn from my own pet areas of interest.
As Kavanagh emphasizes, attention to facts will allow us to have a richer and more accurate understanding of constitutional law. She elaborates on the complexity of the relationship between legislatures and courts, which is sometimes conflictual and sometimes interdependent. That relationship is the subject of her recent book The Collaborative Constitution. But even if one’s ultimate aim is resolutely normative—and Kavanagh does not deny the value of normative claims in constitutional law—it will be better served by paying close attention to facts. As Kavanagh sensibly notes, “Recommendations to judges or legislators about what they should do, must be grounded in an appreciation of what they can and cannot do.” Otherwise, they are pointless.
A further benefit of realism, incidental but not unimportant, may be to lower the temperature of some of the most overheated debates in constitutional theory. A fuller understanding of constitutional facts may show that the stakes in these debates are not quite as high as participants make them out to be. As Kavanagh observes in relation to the debates about the legitimacy of judicial review, the point is not to deny “inevitable tension, friction, competition and conflict,” but rather to avoid strictly “oppositional framing” and “Manichean narrative.” Realist scholars will find it easier to learn from one another, as well as from the facts and rules they engage with.
What, then, are the missing facts and rules with which such scholars ought to engage? Kavanagh is most interested in “the behaviour of constitutional actors,” their “deeds and decisions, their actions and words,” and ultimately “the values, principles, norms and ideals which motivate their behaviour.” But I do not read her as saying that the institutional perspective she adopts in her own work is the only right way to “keep it real.” One program for constitutional realism, which Kavanagh does not mention, but to which those disposed to heed her appeal would do well to pay attention, is the approach described by one of its founders as “politics without romance”—that is, public choice. Nor need one confine one’s observations to the persons or institutions most readily described as “constitutional actors.” Not least, a realistic constitutional theory needs to pay attention to voters, in all their rational ignorance and equally rational irrationality.
Of course, there are some potential pitfalls in a move towards “keeping it real in constitutional theory.” They’re worth highlighting not by way of criticism of Kavanagh’s project but, on the contrary, because they might prevent us from realizing its full value.
One such pitfall would be reminiscent of certain unsavory strands of international relations thought, where “realism” is little more than a euphemism for an abdication in the face of power. One sees this sort of thinking in administrative law scholarship that makes acceptance of the legitimacy of the administrative state the measure of a theory’s plausibility. Kavanagh anticipates this concern and points out that expecting constitutional theory to “fit” reality “neither precludes critique nor undercuts prescription.” The constraint it imposes is more modest and salutary, being simply that “our theoretical arguments are not a matter of pure creativity and utopian imagining.”
Conversely, it would be a mistake to use realism as a justification for falling into the conspiracism about how the world “really” works that is, as Joseph Heath argues in a recent essay, manifested in some forms of “critical theory.” It is, he argues, a “very modern sort of witch-hunt, in which our institutions are castigated for producing various evils, but where no one can point to any clear examples of how they are doing it.” Despite the pretence of a clear-eyed or even scientific understanding of the world, such thinking is, in reality, the product of precisely the kind a priori normative theorizing Kavanagh cautions against.
Last but not least, we need to be aware of the limits and trade-offs that “keeping it real in constitutional theory” involves. Kavanagh points to this issue in a discussion of comparative constitutional law, where calls “to propose and prescribe ambitious normative theories with global reach” can only be met at the expense of fine-grained attention to the detail of how individual constitutions function. Thus, more realistic scholarship may have to be, in a sense, less ambitious, though it would surely be more accurate to say that its ambitions would lie elsewhere instead. And again, the example given by Kavanagh is not the only one. Even when working on a single jurisdiction, it is a tall order to be attuned to institutional realities, public choice considerations, and whatever other factors “keeping it real” might involve. We need, unfortunately, to also be realistic about what we can hope to accomplish.
But the difficulty of a task and the inevitable limitations on its achievement are not good reasons to shirk it altogether. Kavanagh makes a compelling case for more grounded, more subtle, and richer constitutional theorizing. It will be hard and it will be imperfect. But it will be worthwhile.
