Volume 107
Issue 6
JULY 2019 '19

Constitutional Anti-Theory

Written By: Andrew Jordan

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 prac­ tical reasons that arise within the social practice of American constitu­tional law.

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