What is constitutional theory?

Authors
Citation
Da. Strauss, What is constitutional theory?, CALIF LAW R, 87(3), 1999, pp. 581-592
Citations number
20
Categorie Soggetti
Law
Journal title
CALIFORNIA LAW REVIEW
ISSN journal
00081221 → ACNP
Volume
87
Issue
3
Year of publication
1999
Pages
581 - 592
Database
ISI
SICI code
0008-1221(199905)87:3<581:WICT>2.0.ZU;2-Y
Abstract
Just what is constitutional theory? How can it be, as Professor Fallen righ tly says that constitutional theory is both descriptive and prescriptive, a nd is supposed to produce results that seem morally right but also some res ults that make the theory's proponents uncomfortable? In this Reply, Profes sor Strauss argues that a constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upo n principles to resolve more controversial issues. In our culture, for exam ple, 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, su ch as the legitimacy of the decision in Brown v. Board of Education. A cons titutional theory tries to organize these and other points of agreement in a way that prescribes results in cases where there is no agreement So under stood a constitutional theory is comparable to an account of the rules of g rammar for a language, or perhaps to a theory of scientific or mathematical truth.