Increasingly preoccupied with the imaginative dimension of modern constitutionalism, contemporary theorists are still more inclined to treat the foundational ideals of modern constitutional government as the work of some abstract social imagination, rather than to turn their gaze inwards—and reflect on the ways in which their own creations contribute to those ideals’ survival. The aim of this Essay is to explore what might such, more self-reflective, and inevitably more meta-theoretical exercise entail, by paying attention to the tension that runs through Rick Kay’s seminal work on constituent authority—which in a certain sense illustrates the predicament of most constitutional scholars: torn between the imperatives of scholarly sobriety and patriotic loyalty—which makes them more inclined to rationalize the authority of established constitutional fictions—and their residual intellectual curiosity, which encourages them to foreground the inventive, artificial and imaginative character of constitutional government, in general.
Oklopcic, Zoran, "Facts, Fictions and Other Artifices: “Constituent Authority” as the Work of Imagination" (2021). Connecticut Law Review. 477.