As we noted in our previous post, we are attending a two-day colloquium on Richard A. Epstein’s latest tome The Classical Liberal Constitution. At the end of yesterday’s discussion, one legal scholar (Thomas Merrill) posed the following fundamental question: Do we need a theory of the Constitution to understand constitutional cases or do constitutional law? Our answer to this question is an unequivocal NO. We don’t need constitutional theory because constitutional theory is totally unfalsifiable. In short, there is no way of testing whether one’s preferred theory is true or false. Instead, constitutional theory is just a matter of aesthetics or politics. Are we wrong?

Preaching to the choir?