Mr. Justice Nemo's Social Statics

This Essay examines how the evolutionary theory of law would yield a different reading of the Constitution from that which currently flows from the prevailing, imperative theory of law. The evolutionary view of law, most closely associated with the writings of Friedrich Hayek, builds upon objective knowledge. Under that view, the legitimacy of law rests on its resemblance to truth in an epistemological sense, and the role of judges in constitutionaladjudication resembles the discovery of objective knowledge. Today, however, the Supreme Court and constitutional scholars do not merely eschew an evolutionary view of law that builds upon objective knowledge. Rather, they construct doctrines and models of constitutional interpretation that are nonfalsifiable. Nonfalsifiable rationales for constitutional decisions tend to increase the size of the state, which derivatively increases the power and prestige of the Supreme Court, the lower courts, and the legal clerisy in which law professors rank highly. This Essay considers how the role of the Judiciary would change if judicial review were predicated on objective knowledge. If laws based on demonstrably false premises would be struck down as unconstitutional, individual liberty would likely increase relative to thestate.

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