Daydream Believing: Visionary Formalism and the Constitution

Abstract

The failure of traditional strands of legal formalism to provide a satisfactory account of law's relation to material conditions, and its distinction from political practice, has given rise to a new variant of formalist theory: visionary formalism. In this essay, the authors examine visionary formalism through the work of one of its leading exponents, William E. Conklin. They contend that, far from rescuing legal formalism, the visionary account of constitutional adjudication put forward in Conklin's recent treatise, Images of the Constitution, exposes formalism for what it is: an effort to romanticize and legitimize a peculiarly regressive mode of political practice. In the final sections of the essay, the authors provide their own account of the connections among law, politics and material conditions. They conclude that only a "constitutive legal theory", embracing a critical understanding of the political nature and historical contingency of legal structures, offers any real hope of harnessing law as a progressive social instrument.