How to Choose a
|People concerned about constitutional law
confront a large number of competing
constitutional theories, which offer conflicting
accounts of how judges should interpret and apply
the Constitution. Assessment of such theories
needs to be based partly on normative grounds.
Moreover, there is a surprising degree of
implicit agreement among constitutional theorists
about the criteria that a constitutional theory
ought to satisfy. Besides "fitting"
either the text of the written Constitution or
surrounding constitutional practice,
constitutional theories should be judged based on
their capacity to (i) maintain the rule of law, (ii)
preserve fair opportunity for political
democracy, and (iii) protect a morally and
politically acceptable set of substantive rights.
Determining which constitutional theory would
best promote these goals requires a partly
instrumental calculation, including an assessment
of who our judges and Justices are likely to be.
Nonetheless, the need to select a theory on
instrumental grounds does not justify
unprincipled, case-by-case manipulation. A good
constitutional theory should impose constraints
on those who accept it.
© 1999 by California Law Review, Inc.
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