A Machine Made of Words: Our Incompletely Theorized Constitution
University of New Hampshire Law Review, Vol. 9, 2011
17 Pages Posted: 14 Dec 2010 Last revised: 10 Jul 2020
Date Written: December 12, 2010
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.
Keywords: u.s. constitution, human rights, abstract theorizing, general principles, rhetoric, comparative constitutional law, preamble
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