Popular Metadoctrinalism: The Next Frontier?

BY MICHAH J. W. SMITH

Three years ago, Professor Mitchell Berman observed that constitutional scholars have recently begun to turn their attention away from constitutional “meaning” to what he loosely called “constitutional doctrine”— that is, the rules courts craft in order to implement constitutional meaning.  This increasingly popular genre of “doctrinal” scholarship—which has its modern roots in the work of Henry Monaghan and Larry Sager— is not directly concerned with developing and critiquing methods of constitutional interpretation, but rather with “the potentialities and challenges that arise from the existence of doctrine, conceived as a category of judicial work product . . . .” And given that works of this type concern themselves “with the fact of doctrine but not with its particular content,” Professor Berman felicitously labeled the genre “metadoctrinalism.”

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