Reasons for Reasons, Constitutional Theory, and Pragmatic Compromises

In this episode we get to the heart of Mike’s book, his argument that judicial review as practiced today can’t be justified because justification requires a foundation in good constitutional theories—and none of the theories on offer are good enough. After a minor skirmish over what’s good enough, we take up a feature of Mike’s account that he finds attractive—that deconstitutionalizing everything would open the way for pragmatic compromises on the deep issues of principle that divide us. Mark responds that, while that might have been true in the past when our parties were coalitions of disparate interests, it’s no longer true today where our parties are ideologically unified and strongly polarized. He argues that in today’s world the result of de-constitutionalization would lead to take-or-leave-it legislation by whoever happens to control the levers of power, not messy compromises. We leave it at that, with further discussion to come in our final episode on Mike’s book.