A Machine Made of Words: Our Incompletely Theorized Constitution
U.S. Army JAG Corps
December 12, 2010
University of New Hampshire Law Review, Vol. 9, 2011
The conventional wisdom says that the U.S. Constitution represents "a comfortable and even emphatic agreement on... general principle, accompanied by sharp disagreement about particular cases." This essay draws attention to an often overlooked feature of the Constitution that lies in tension with the conventional view. For a document that is assumed to represent an agreement on general principles, the U.S. Constitution contains remarkably few statements of principle. In fact, an empirical analysis suggests that the U.S. Constitution has a good claim to containing the least abstract theorizing of any constitutional document of its era. The Constitution is thus an “incompletely theorized agreement” not only in the sense of being a work of broad theoretical agreement that breaks down at the level of particularity, but also in the sense of being an agreement on particular, concrete rules accompanied by disagreement on the abstract theories supporting those rules.
Number of Pages in PDF File: 17
Keywords: u.s. constitution, human rights, abstract theorizing, general principles, rhetoric, comparative constitutional law, preambleAccepted Paper Series
Date posted: December 14, 2010 ; Last revised: September 9, 2011
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