This Feature provides the first full-length treatment of practice-based constitutional theories, which include some of the most important theories advanced in modern scholarship. Practice-based constitutional theories come in originalist and nonoriginalist—as well as conservative and progressive—varieties, and they assert that a constitutional theory should generally conform to our social practices about law. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory. Practice-based constitutional theorists would usually see it as a defect if a theory required a significant change in our social practices, such as overruling large swathes of landmark precedents.
But why should we care whether a constitutional theory conforms to our social practices? That normative question requires a normative answer, yet there has been very little scholarship systematically analyzing the justifications often given by practice-based theorists for conforming constitutional theories to our social practices. This Feature identifies and examines the primary justifications offered for practice-based constitutional theories: legal positivism, reflective equilibrium, and the stability that comes from an overlapping consensus. In doing so, it also provides the most in-depth analysis of the nature of practice-based constitutional theories to date.
The justifications usually offered by practice-based theorists reflect the influence of H.L.A. Hart and John Rawls on American constitutional theory. Although each justification is sophisticated, none can bear the normative weight that would justify conforming constitutional theories to our social practices. A constitutional theory cannot ignore our social practices, but it is the theory that can justify those practices, not the other way around.
J. Joel Alicea, Practice-Based Constitutional Theories, 133 Yale L. J. 568 (2023).