Constitutional Theory
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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
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By Lawrence B. Solum Introduction This week the Legal Theory Lexicon entry focuses on “ambiguity” and “vagueness”–two important concepts for the theory of interpretation. Some legal texts are ambiguous–they contain words or phrases that can have two or more distinct meanings. And some legal texts are vague–they use concepts that have indefinite application to particular cases. And
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By Lawrence B. Solum Introduction The counter-majoritarian difficulty (sometimes dilemma) may be the best known problem in constitutional theory. The phrase is attributed to Alexander Bickel—a Yale Law School Professor—who is said to have introduced it in his famous book The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Whatever Bickel actually
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By Lawrence B. Solum Introduction “Legitimacy.” It’s a word much bandied about by students of the law. “Bush v. Gore was an illegitimate decision.” “The Supreme Court’s implied fundamental rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not have a legitimate basis in international law.” We’ve all heard words like these uttered countless times,