53 Pages Posted: 17 Apr 2018
Date Written: April 7, 2018
Most constitutional theorizing aims to specify the meaning or content of the Constitution. Constitutional content, in turn, is assumed to have implications for sound constitutional decision-making. In this article, I argue that the search for a general theory of constitutional content rests on a mistake. Sound constitutional decision-making, I argue, does not rest on a prior account of constitutional content. In defending this conclusion, I argue that sound constitutional decision-making is pluralistic, open ended, and context dependent. Those features of sound constitutional decision-making are at odds with any attempt to specify a general theory of constitutionality that could guide constitutional decision makers. On the positive view defended here, constitutional decisions are constitutional not because they arise out of some independent source that makes things constitutional, be it text, structure, precedent or some other thing. They are constitutional because they involve practical reasons that arise within the social practice of American constitutional law.
Keywords: Constitutional Law, Constitutional Theory, Pluralism, Anti-Theory, Contextualism, Law and Morality
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