Workshop on Kavanagh’s “Keeping It Real in Constitutional Theory”

Aileen Kavanagh, Keeping It Real in Constitutional Theory.

Solum’s Download of the Week for November 22, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5760902.

This is a synthetic academic workshop generated using enTalkenator (Workshop Hot Bench template, using the new Google Gemini 3 Pro Preview — it will be interesting to see how this new model performs).

Abstract: “In constitutional theory, we are familiar with the claim that a good theory must fit and justify constitutional practice. However, the criterion of ‘fit’ sometimes gets lost in the quest to provide a bold normative theory about what constitutional should be. Using the debate about the legitimacy of constitutional judicial review as an example, this article warns against a problematic disjuncture between theory and practice in the domain of constitutional law. The key argument is that credible normative theorising about constitutional law should rest on a descriptively plausible foundation. Absent such grounding, there is a risk that our theories of constitutionalism become theories of a fiction. To avoid this hazard, we need to ‘keep it real’ in constitutional theory and comparative constitutional law.”