The Fit Dimension

30 Pages Posted: 13 May 2007 Last revised: 31 Mar 2008

See all articles by Abner S. Greene

Abner S. Greene

Fordham University School of Law

Abstract

Most constitutional interpretation claims to depend on fit plus justification, and the fit dimension is, substantially, about adherence to constitutional law precedent. This piece, beginning with commentary on recent books by Jim Fleming and Cass Sunstein and then branching out from there, explores in detail the dimension of fit. It argues that none of the standard arguments for treating constitutional law precedent as binding - stability, avoid fights over fundamentals, integrity and the rule of law, equality, and Burkean - can suffice. The core of the piece explains why these arguments leave us short of the case for precedent as obligating, rather than as merely material that should be accounted for. The article also shows how justification overhangs fit; argues that if we accept a gap between the adjudicated Constitution and the Constitution itself, then we don't also need a gap between the Constitution itself and political justice; and explains what room is left for fit, if we don't view it as obligating.

Suggested Citation

Greene, Abner S., The Fit Dimension. Fordham Law Review, Vol. 75, p. 2921, 2007; Fordham Law Legal Studies Research Paper No. 985883. Available at SSRN: https://ssrn.com/abstract=985883

Abner S. Greene (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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