The Constitutional Incompleteness Theorem
82 Pages Posted: 1 May 2011 Last revised: 28 Dec 2018
Date Written: May 2013
In this Article, I argue that some truths about our constitutional order are best left misunderstood. I do so by defending a self-deception at the core of American discourse on constitutionalism. We tend to speak as if our constitutional system rests upon an uncompromising inquiry into constitutional meaning, yet all viable interpretive theories privilege some concerns above such meaning, however they define it. This paradox, I argue, arises out of the tension between longstanding constitutional commitments to Enlightenment thought and the common law tradition. It also preserves an appearance of coherence that is, in my view, as vital as it is false. In elevating an Enlightenment ideal that belies our common law culture, we foster a redemptive vision of constitutionalism that binds us together even as conflicts over constitutional meaning drive us apart.
Keywords: constitutional theory, jurisprudence, constitutional interpretation, mythology, disjunction, obscurantism
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