Unbundling Constitutionality

67 Pages Posted: 21 Feb 2013 Last revised: 13 May 2013

Richard Primus

University of Michigan Law School

Date Written: March 4, 2013

Abstract

Constitutional theory features a persistent controversy over the source or sources of constitutional status; that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. As a result, decision makers should often direct their attention more to the separate substantive properties that are associated with constitutionality than to the question of constitutional status itself.

Keywords: Constitutional Law, Constitutional Theory, Constitutional Interpretation

JEL Classification: K19

Suggested Citation

Primus, Richard, Unbundling Constitutionality (March 4, 2013). University of Chicago Law Review, 2013; U of Michigan Public Law Research Paper No. 312. Available at SSRN: https://ssrn.com/abstract=2220995 or http://dx.doi.org/10.2139/ssrn.2220995

Richard Primus (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-647-5543 (Phone)
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