Justin Driver

89 Texas L. Rev. 755

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In this Article, Driver challenges the rising view within constitutional law known as “consensus constitutionalism.”  This view holds that the Supreme Court interprets the Constitution in a way that reflects the “consensus” beliefs of the American public.  Driver challenges this view by identifying and critiquing its defining features.

Driver notes that this consensus movement has a similar precedent among history professors during the 1940s and 1950s.  These professors, reacting to a perceived overemphasis on conflict in examinations of the past, argued that the historical focus should instead by on American commonality.  This movement did not last, as it was discredited by the 1960s for its homogenous conception of the past.  Driver finds it curious, then, that consensus constitutionalists, who also rely on history in their scholarship, do not appear to have incorporated the debate among history professors into their work, especially considering the important lessons and conclusions that can be drawn from it.

After reviewing this debate, Driver turns to three analytical shortcomings of consensus constitutionalism.  It views the American people as united when in fact ideological divisions pervade society.  Also, its notion that the Court’s decisions reflect some societal consensus leads to the misguided impression that judicial decisions are inevitable, so the composition of the Court is irrelevant.  Lastly, it contains distressing normative implications regarding the Court’s ability to clash with majority preferences, assuming the justices accept its warning about the perils of the Court outpacing public opinion.

As an alternative external methodology, Driver proposes “contested constitutionalism.”  According to this approach, the Court’s constitutional interpretation typically arises in the face of ideological conflict, not consensus.  Driver then illustrates in detail how this alternative approach plays out in practice by providing a revised account of Brown v. Board of Education and the Court’s role in recognizing black Americans as full citizens during this period.

In conclusion, Driver urges legal scholars to move away from consensus constitutionalism and its focus on simplicity, and instead embrace contested constitutionalism in order to provide a richer historical account of many significant events in legal history.  Moreover, how law professors explain the Court’s history and its ability to protect minority rights, writes Driver, ultimately exert some influence on how judges perform their jobs.  Thus, contested constitutionalism seeks to preserve the Court’s countermajoritarian capabilities.