Before the ACA decision, I wrote this cynical take on academic con law.

Josh Chafetz at Cornell Law School sent me the following reply in an email, which he gave me permission to post:

I can’t help but comment…on your comment on my chosen field (“Academic Constitutional Legal Theory is Intellectually Corrupt”).  Clearly, some people do choose their interpretive theories to get the results they like, and probably no one chooses an interpretive theory that, more often than not, produces results they find abhorrent.  But I don’t think those points get you anywhere near the claim that “almost everybody” doing academic con law is “intellectually corrupt.”

First, as an empirical matter, I’m not at all sure how you reached the conclusion that almost everyone begins with a political philosophy and reverse-engineers from there.  How would you know if that was what they were doing, as opposed to something else?  Obviously, I only have access to my own cognitive processes, but I can tell you that, for me, it is very much the other way around – my thinking about political philosophy has changed significantly as a result of my thinking about the Constitution.  I’d suggest that many other academics are similar – after all, “this law is stupid but constitutional” is a fairly common refrain among constitutional law people.  And as for why you don’t see more left-liberal theorists saying, “A just society would allow X, but, alas, our Constitution forbids X and is to that extent a bad Constitution,” I’d suggest that you just haven’t been looking hard enough.  All of Sandy Levinson’s recent work falls into that vein.  Bruce Ackerman has repeatedly critiqued constitutional structure.  The entire edited volume Constitutional Stupidities, Constitutional Tragedies takes up this task.  And these are contributions by many of the leading constitutional scholars out there.

Second, as an interpretive matter, you seem to be assuming that there is a naturally correct way to interpret the Constitution and that it ought to be completely outcome-independent.  But there are interpretive theories – often labeled “pragmatic” – that argue that the consequences of a certain interpretation are highly relevant to the interpretive process.  Now, you may reject that interpretive theory, but I find it hard to see why it would be corrupt.