Slaying the Misshapen Monster: The Case for Constitutional Heuristics

Abstract

On 9 February 1784 Adriaan Kluit, rector magnificus at the University of Leiden, ascended the podium to deliver his valedictory address: ‘On the abuse of constitutional law’.1 Kluit was speaking at a time of fierce contestation in Dutch politics between the Orangists (with whom Kluit identified) and the anti-Orangist ‘Patriots’. The language of constitutional theory had become a key weapon in their battle, and it was to that language that Kluit’s address was directed. Its contents were sharp and uncompromising. The Patriots, Kluit said, had created ‘a misshapen monster in constitutional law.’2 The excellent provisions of the Dutch state’s settled constitutional institutions had established civil liberty on the firmest foundations, but these accomplishments were threatened by those who, posing as the commonwealth’s physicians, were taking it down a path of ruin.3 The Patriots’ constitutional doctrines, Kluit warned, were a destructive plague bringing catastrophes upon commonwealths.4 This chapter is motivated by our sense that little has changed since Kluit’s day in the methodology of constitutional theory and how it deals with disagreement. The debate between Kluit and the Patriots was at one level a theoretical debate as to the meaning of liberty, and whether civil liberty mattered more than political liberty. Yet the argument about these concepts was suffused with claims about facts: about the Netherlands’ Batavian