My legal realist inclinations leave me largely agnostic about the particular provisions that happen to be included in any particular constitution. That is because both written and unwritten constitutions seem more likely to reflect than to prescribe the normative values of the cultures that adopt them. As a result, the substantive, structural, and procedural provisions of the present United States Constitution seem perfectly adequate to promote justice-at least in a culture that is genuinely committed to the cause of justice. No constitution is likely to promote justice in a culture that lacks such a commitment. Nevertheless, there is one change that I would make if I were rewriting our current Constitution. I would eliminate the institution of judicial review.
Judicial review is commonly thought to facilitate an acceptable degree of convergence between the abstract principles celebrated in our written Constitution and the actual practices of our political culture in the conduct of its day-to-day affairs. However, I fear that judicial review, in fact, serves precisely the opposite function.
27 Const. Comment. 557 (2010-2011)
Scholarly Commons Citation
Spann, Girardeau A., "Constitutional Hypocrisy" (2011). Georgetown Law Faculty Publications and Other Works. 1928.