The New Doctrinalism in Constitutional Scholarship and Heller v. District of Columbia

Abstract:     
This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning - the usual focus of constitutional theory - and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in constitutional theory. The upcoming case on the Second Amendment, Heller v. District of Columbia, is offered as a case study in the payoff for constitutional law of taking doctrine seriously.

Number of Pages in PDF File: 8

Keywords: New Doctrinalism, doctrine, constitutional operative proposition, decision rules, constituitonal theory, Second Amendment, Heller, Richard Fallon, Kermit Roosevelt, Mitchell Berman

JEL Classification: O1

Accepted Paper Series