Constitutional Anti-Theory

53 Pages Posted: 17 Apr 2018

See all articles by Andrew Jordan

Andrew Jordan

Court of Appeals for the Ninth Circuit

Date Written: April 7, 2018

Abstract

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

Suggested Citation

Jordan, Andrew, Constitutional Anti-Theory (April 7, 2018). Available at SSRN: https://ssrn.com/abstract=3155287 or http://dx.doi.org/10.2139/ssrn.3155287

Andrew Jordan (Contact Author)

Court of Appeals for the Ninth Circuit ( email )

1010 5th Ave.
Seattle, WA 98104

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