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

8 Pages Posted: 15 Feb 2008

See all articles by Brannon P. Denning

Brannon P. Denning

Samford University - Cumberland School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: January 30, 2008

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.

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

JEL Classification: O1

Suggested Citation

Denning, Brannon P., The New Doctrinalism in Constitutional Scholarship and Heller v. District of Columbia (January 30, 2008). Available at SSRN: https://ssrn.com/abstract=1092627 or http://dx.doi.org/10.2139/ssrn.1092627

Brannon P. Denning (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

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