Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date





Drake University Law School




Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I show that pragmatism lives on in constitutional theories that don't self-consciously characterize themselves in such terms. I also contend that pragmatism takes different forms in their theories: disciplinary substitution, decisional allocation, managed consequentialism, and materialist purposivism. Together, these represent the legacies of pragmatism. Third, after considering the views of Robin West and Roberto Unger, I offer some thoughts about what it will take to construct a form of pragmatism that restores the tradition's emphasis on humanistic governance.

Find on SSRN Link to Publisher Site



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.