ABSTRACT
This chapter discusses the prevailing schools of constitutional theory and John Hart Ely's criticisms of them. It takes up Ely's proposed constitutional theory, which contends that judicial review is justified when it is "representation-reinforcing." The chapter examines the consequences for constitutional scholarship of Ely's success in destroying other theories and his failure in constructing his own. After a brief look at unsatisfactory responses within the framework of standard scholarship, it provides a new approach to the field by drawing on Roberto Unger's analysis of liberal thought. The chapter argues that the three principles are bound up with what Unger calls the antinomies of liberal thought and that the incoherence of constitutional theorizing reflects internal tensions in liberalism. They are justification principle, restraint principle, and principle of value-free adjudication. The essential point is that constitutional theory must satisfy all three principles, and that, if Professor Unger's analysis of liberalism is correct, constitutional theory cannot do so.
