Academic

Brazeal on the Constitution as Incompletely Theorized Agreement

By Lawrence Solum

Gregory Brazeal has posted A Machine Made of Words: Our Incompletely Theorized Constitution (University of New Hampshire Law Review, Vol. 9, 2011) on SSRN. Here is the abstract:

The conventional wisdom says that the U.S. Constitution represents "a comfortable and even emphatic agreement on...general principle, accompanied by sharp disagreement about particular cases." This essay draws attention to an often overlooked feature of the Constitution that lies in tension with the conventional view. For a document that is assumed to represent an agreement on general principles, the U.S. Constitution contains remarkably few statements of principle. In fact, an empirical analysis suggests that the U.S. Constitution has a good claim to containing the least abstract theorizing of any constitutional document of its era. The Constitution is thus an ?incompletely theorized agreement? not only in the sense of being a work of broad theoretical agreement that breaks down at the level of particularity, but also in the sense of being an agreement on particular, concrete rules accompanied by disagreement on the abstract theories supporting those rules.

Full post as published by Legal Theory Blog on December 16, 2010 (boomark / email).