Herbert Wechsler's Complaint and the Revival of Grand Constitutional Theory

In 1988, Mark Tushnet noted the "revival of grand theory in constitutional law." Tushnet was somewhat unusual in specifying the object of contemporary constitutional theory so precisely. As he noted, what had been revived in the late twentieth century was an "interest in comprehensive normative theories of constitutional law." There was relatively little broad concern with constitutionalism in this revival, but quite a lot of concern with justifying and elaborating the preferred constitutional decisions of the Supreme Court in specific cases. Having "just published a book on constitutional theory that I unsurprisingly but undoubtedly erroneously regard as the last word on the subject," Tushnet pronounced it time "to start doing something else." Just over a decade later, Tushnet has returned to constitutional theory with another book, but fortunately he has still produced "something else." Rather than offering yet another comprehensive normative theory of constitutional law, Tushnet has engaged a different, grander tradition of constitutional theory that is more concerned with governmental systems and political authority than with judicial doctrine. His contribution to the revival of this tradition of grand constitutional theory is most welcome.