Constitutional Anti-Theory

45 Pages Posted: 17 Apr 2018 Last revised: 14 Jul 2019

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 decisionmaking. In this Article, I argue that the search for a general theory of constitutional content rests on a mistake. Sound constitutional decisionmaking, I argue, does not rest on a prior account of constitutional content. In defending this conclusion, I argue that sound constitutional decisionmaking is pluralistic, open-ended, and context-dependent. Those features of sound constitutional decisionmaking are at odds with any attempt to specify a general theory of constitutionality that could guide constitutional decisionmakers. 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). 107 Georgetown Law Journal 1515 (2019). Available at SSRN: https://ssrn.com/abstract=3155287 or http://dx.doi.org/10.2139/ssrn.3155287

Andrew Jordan (Contact Author)

Ohio Supreme Court

No Address Available

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