Levels of Generality, Constitutional Comedy, and Legal Design
44 Pages Posted: 5 Sep 2013 Last revised: 1 Oct 2013
Date Written: September 1, 2013
Many commentators write happy endings to their constitutional stories. This essay examines a few techniques for reaching preferred conclusions without falling outside the boundary of conventional constitutional argument. The investigation is oriented around the levels of generality by which sources of constitutional law are characterized. Level of generality characterizations apply to all sources of constitutional argument including constitutional clauses, originalist history, tradition, and judicial precedent. But there is more than one kind of “generality” -- or at least more than one idea associated with that concept in the law literature. We can isolate three different dimensions of source characterization that recur in modern constitutional debates: (1) abstractness, (2) breadth, and (3) dynamism. Each dimension is conceptually distinct, practically important, and independently interesting. However, potential manipulation of choices along these dimensions may create credibility problems for constitutional advocates who promote one set of characterizations over others. The essay closes by suggesting that, happily, constitutional advocates advertise serious matters of legal design when they argue about the degree of abstractness, breadth, and dynamism in constitutional law. Regardless of how these characterization decisions are made, they help determine the character of the legal system for us all.
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