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

See all articles by Gregory Brazeal

Gregory Brazeal

University of South Dakota Law School

Date Written: December 12, 2010

Abstract

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

Suggested Citation

Brazeal, Gregory, A Machine Made of Words: Our Incompletely Theorized Constitution (December 12, 2010). University of New Hampshire Law Review, Vol. 9, 2011, Available at SSRN: https://ssrn.com/abstract=1724402

Gregory Brazeal (Contact Author)

University of South Dakota Law School ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

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