THE UNCERTAIN FOUNDATIONS OF PUBLIC LAW THEORY

Recently, public law scholarship has taken a “jurisprudential turn.” Scholars have argued for controversial public law conclusions—concerning how to interpret the Constitution, the powers of administrative agencies, and the responsibilities of judges—based on assumptions about the fundamental grounds of legal validity. Some use this jurisprudential move to denounce opposing views as not merely mistaken, but denying or defying the law, thus raising the stakes in public law disputes. A surprising feature of this development in public law theory is that those who lean on jurisprudential assumptions either dismiss as irrelevant or pass over in silence persistent disagreement in general jurisprudence about the nature of law. We argue that tracing our public law convictions to contested assumptions about law’s nature should make us less (not more) confident in the rightness of our conclusions and the wrongness of the opposing side. Our case for confidence-lowering begins with a close examination of prominent examples of the jurisprudential turn, including arguments for broadly originalist conclusions. After highlighting the unargued-for assumptions about the nature of law on which these works rely, we develop a general challenge for this mode of advocacy based on the epistemology of “peer disagreement.” Our challenge invokes intellectual reasons for withholding judgment on questions that inspire persistent disagreement among good-faith reasoners. The upshot is that controversial claims about public law should be approached with ambivalence on all sides, and an awareness of the general reasons for ambivalence should significantly alter the tenor of public law debates.