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Tuesday, November 29, 2011

Constitutional Pragmatism and Morality

Thanks to the PrawfsBlawg regulars for letting me guest blog this past month. In this last post, I briefly want to explain that a false dichotomy is often drawn between pragmatic and moral approaches to constitutional issues. Thus, some of the most principled legal scholars I know find the idea of pragmatic arguments troubling in certain circumstances. Yet constitutional pragmatism has important moral components. Justice Breyer's pragmatism values the idea of democracy. Judge Posner is more concerned about arriving at the best result, often using economic tools. In the philosopher's realm, William James and John Dewey shared many moral views, such as the value of democracy, tolerance, education, debate, civil society (including churches), pluralism, reason, community, etc. These are quite important aspects of a liberal democracy.

Of course, pragmatists are skeptical in many instances about there being one absolute moral truth. They are also more contextual in their assessments. In addition, some pragmatists support moral values for instrumental reasons. Yet moral considerations certainly play a role in pragmatic constitutional adjudication, as do the other elements I have mentioned in prior posts. Since I've run out of time for blogging this month, I should mention that a law review article discussing my typology of constitutional pragmatism in more detail will be forthcoming next Spring in a symposium type volume from the Denver Law Review. The piece is titled "Constitutional Pragmatism, the U.S. Supreme Court, and Democratic Revolutions." I will post it on SSRN after more editing. Thanks again for your time and happy holidays to all.

Posted by Mark kende on November 29, 2011 at 07:53 PM | Permalink

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