"Community in Contemporary Constitutional Theory," 99 Yale Law Journal, Fall 1989.
American constitutional theory has been cyclical, understanding the Constitution sometimes as a product of will and sometimes as a product of reason. Neither reason nor will ever completely disappears, but an age can usefully be characterized by either its majoritarian, consensual cast or its rationalist, scientific outlook. Chief Justice Marshall's Court, for example, was committed to the idea of reason in politics: To Marshall, the Constitution was the product of political science. This faith in a convergence of constitutional order and a science of politics disappeared in the ante-bellum period. It was replaced by the belief that the Constitution rests on will alone. The purpose of constitutional interpretation, on this view, was to determine the object of that will, or, in more traditional terms, the intent of those who drafted and ratified the Constitution. By the end of the nineteenth century, the Constitution was again understood as a product of reason. The Lochner court believed that the Constitution was to be approached through a science of law that linked the exposition of the common law to contemporary social science, in particular to social darwinism.
Date of Authorship for this Version
Kahn, Paul W., "Community in Contemporary Constitutional Theory" (1989). Faculty Scholarship Series. Paper 336.