Can Pragmatists be Constitutionalists? Dewey, Jefferson and the Experimental Constitution

Abstract

At the beginning of the present century, a debate over the compatibility of constitutionalism and pragmatism erupted in the pages of the journal Administration and Society. Several scholars (especially James Stever, Kevin Snider and Patricia Shields) expressed concern that Deweyan pragmatism, or the classic pragmatism of John Dewey that some contemporary philosophers subscribe to, might be incompatible with the commitment to constitutional order found at the heart of the administrative state tradition. In this paper, the issue that arose in Administration and Society is framed more generally: Can pragmatists, and particularly Deweyan pragmatists, be constitutionalists? By way of answering this question, I define Dewey’s experimentalism in terms of his theory of inquiry and action, before proceeding to the administrative state debate, where the claim emerges that constitutional limits offend the experimentalist drive of Dewey’s pragmatism. Next, three typical (though by no means exhaustive) conceptions of constitutionalism are presented: (i) traditionalism (or that a constitution expresses the traditions or mores of its drafters’ society), (ii) organicism (or that a constitution is a living document, the meaning of which evolves with the changing values and norms of each new generation) and (iii) functionalism (or that a constitution functions as an ordering device, both creating and perpetuating legitimate legal-political frameworks). Then, I consider whether a founding document modeled after each conception can preserve political stability amidst a tolerable level of political change without offending Dewey’s experimentalism. In light of Dewey’s essay “Presenting Thomas Jefferson,” a related issue arises: Does Jefferson’s notion of generational sovereignty have any bearing on the matter of pragmatism and constitutionalism’s compatibility? The paper concludes with a final evaluation of the degree to which Deweyan experimentalism can accommodate a commitment to constitutionalism in its various forms.