 |
|
Create Your Own Constitutional Theory |
|
| Critics of constitutional pragmatism, such as Professor Fallon, argue that courts should not decide constitutional cases simply by asking what outcome is best, all things considered. Such an approach, the critics contend, does not permit constitutional adjudication to advance values associated with democracy, the rule of law, and individual rights. This Reply to Professor Fallon's article in this issue argues that the critics are right to reject pure adjudicatory instrumentalism, but that a different conception of pragmatism should inform constitutional interpretation. Early twentieth-century American philosophers used the term pragmatism to mean understanding a practice by participating in it rather than theorizing about it. Applied to constitutional law, this notion of pragmatism-as-contextualism makes instrumentalism safe for interpretation, for it allows instrumental considerations to be weighed within the felt-but-difficult-to-define constraints imposed by constitutional practice. In endorsing constitutional pragmatism-as-contextualism, this Reply challenges Professor Fallon's suggestion that judges and constitutional scholars should "choose" constitutional theories that they then use to resolve concrete disputes. Instead, this Reply argues that theories of constitutional interpretation emerge from considered, contextual judgments about particular cases. | |
|
|
|
Copyright
© 1999 by California Law Review, Inc. |
|