In Praise of Ignoring Facts

Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to [Jack] Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates’ rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of what American constitutional law provides ought to be responsible to a theory of what American law provides, which in turn ought to be responsible to a theory of legal content more generally. Or, to put it in slogan form, constitutional theory needs more theory—less court- or lawyer-watching and more concern about distinguishing the content of the law from the many other law-adjacent phenomena in a complex society like ours.

This abstract has been taken from the author's introduction.