What is Constitutional
|Just what is constitutional theory? How can
it be, as Professor Fallon rightly says, that
constitutional theory is both descriptive and
prescriptive, and is supposed to produce results
that seem morally right but also some results
that make the theory's proponents uncomfortable?
In this Reply, Professor Strauss argues that a
constitutional theory tries to draw upon bases of
agreement that exist within a legal culture and
to extend those agreed-upon principles to resolve
more controversial issues. In our culture, for
example, there is widespread agreement both on
abstract principles--such as the idea that the
text of the Constitution is important but that
precedent also matters in interpreting the
Constitution--and on specific points of law, such
as the legitimacy of the decision in Brown v.
Board of Education. A constitutional theory
tries to organize these and other points of
agreement in a way that prescribes results in
cases where there is no agreement. So understood,
a constitutional theory is comparable to an
account of the rules of grammar for a language,
or perhaps to a theory of scientific or
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