Constitutional Theory
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Introduction Law students are almost certain to encounter the phrase “history and tradition” in constitutional law. The phrase appears in cases about guns, abortion, and prayer at public high school football games. But what does “history and tradition” actually mean? Is history and tradition simply another name for originalism? Or is the turn to history…
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Introduction Law students at different law schools encounter the course in constitutional law at different points in their legal education. At some law schools constitutional law is a second-semester first-year course, but conlaw is sometimes a first-semester 1L course and at a significant number of law schools, the course is an upper-division elective or requirement.…
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Introduction The usual story we tell about statutes is that every statute has the same “force of law,” irrespective of age or importance. Some statutes might be more consequential than others; other statutes might be entrenched politically. But their legal status is the same. The usual story has been challenged by the idea that there…
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Introduction Legal discourse is organized by structures that operate above the level of individual rules. When a constitutional lawyer reads a Commerce Clause case, she does not approach it as an isolated proposition; she reads it within a framework of canonical cases, doctrinal generalizations, normative theories, and historical narratives — a framework that tells her…
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By Lawrence B. Solum Introduction The world of contemporary constitutional theory is complicated. Although originalism is the focus of attention in many recent discussions, there are a plethora of nonoriginalist positions. One of these is usually called “constitutional pluralism,” an approach to constitutional interpretation and construction which holds that constitutional practice should be guided by…
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By Lawrence B. Solum Introduction The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory. One aspect of this idea connects with the notions of “judicial activism” and “strict construction” that are discussed in a…
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By Lawrence B. Solum Introduction Most law students will encounter “originalism” in their first course in constitutional law. Depending on the instructor, this encounter could be quite short or very extensive. Most law students will know that originalist constitutional theory is concerned with “original meaning,” but they may not know about the differences between versions…
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Lawrence B. Solum Introduction Many undergraduates are likely to become acquainted with John Stuart and Harriet Mill’s famous harm principle at some point. Here is how they stated the principle in On Liberty: The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with…
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By Lawrence B. Solum Introduction Some of the key conceptual tools deployed by legal theorists are likely to be familiar to many law students from their undergraduate education. One of these is the notion of the “social contract”–familiar from Hobbes, Locke, and Rousseau. But unless you were an undergraduate philosophy major or have some graduate…
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By Lawrence B. Solum Introduction When studying constitutional law, students are likely to be exposed to the idea that interpretation of the United States Constitution may include reference to what are sometimes called “constitutional principles”–general and abstract normative ideas that can aid or guide attempts to glean meaning from the text and may even provide…