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Precautionary Principles in Constitutional Law


Adrian Vermeule


Harvard Law School

September 19, 2011

Harvard Public Law Working Paper No. 11-20

Abstract:     
This article examines precautionary strategies of constitutional design and interpretation. In many contexts, constitutional actors and theorists justify rules of constitutional law as precautionary measures against various political risks, including the abuse of power by incumbent officials, dictatorship, majoritarian oppression, and biased adjudication. After providing an analytic taxonomy of such arguments, I examine criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might be futile, might jeopardize other values, and might even prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent. Accordingly, these critics argued for a “mature position” that requires constitutional rulemakers to consider all relevant risks of action and of inaction. I identify a strictly negative but nonetheless valuable function of that approach: by laundering out one-sided arguments and placing all relevant risks before constitutional rulemakers, the mature position improves the process of constitutional design and interpretation.

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Date posted: September 19, 2011 ; Last revised: March 16, 2012

Suggested Citation

Vermeule, Adrian, Precautionary Principles in Constitutional Law (September 19, 2011). Harvard Public Law Working Paper No. 11-20. Available at SSRN: http://ssrn.com/abstract=1930427

Contact Information

Adrian Vermeule (Contact Author)
Harvard Law School ( email )
1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States
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