Abstract:
What exactly does the theory of constitutional law mean? How can it be said that the theory of constitutional law (as Professor Fallon correctly states) is both descriptive and prescriptive, and assumed to produce results that are morally right but pose problems for the theory's proponents? In response, Professor Strauss argues that a theory of constitutional law serves to delineate and provide the agreed-upon foundations that exist within the framework of a legal culture, and serves to develop accepted principles in resolving controversial issues. For example, in our culture, there is broad agreement both on abstract principles—such as the idea that the text of the constitution is important, but also that precedent and judicial practice are important in interpreting the constitution—and on specific legal points, such as the legitimacy of the decision in the case of Brown v. Board of Education. A theory of constitutional law functions to organize these and other agreed-upon matters in a way that prescribes outcomes in cases where no agreement exists. In this style, a theory of constitutional law may be comparable to an interpretation of the grammatical rules of a language or perhaps to a theory of scientific or mathematical reality.
Machine summary:
In response, Professor Strauss argues that a constitutional theory serves to delineate and provide the consensual foundations that exist within the framework of a legal culture, and serves to develop accepted principles in resolving controversial issues.
For example, in our culture, there is broad consensus both on abstract principles—such as the idea that the text of the constitution is important, but so too are precedent and judicial practice in interpreting the constitution—and on specific legal points, such as the legitimacy of the decision in Brown v.
11 Certainly, Professor Fallon is correct in saying that constitutional theories must be accepted or rejected based on whether they, in essence, promote the rule of law, political democracy, and individual rights.
Constitutional theory justifies its prescriptions regarding controversial issues by outlining the consensus foundations that exist within the legal culture and attempts to extend those agreed-upon principles toward decision-making on contentious topics.
First, the said theory cannot deny any of the agreed-upon issues within the legal culture that are completely institutionalized issues, such as the relevance of the constitutional text or, today, the legitimacy of the Brown decision.
Such an interpretation of constitutional theory—which admits that constitutional theory, by mapping the consensus foundations existing in legal culture, attempts to justify certain controversial results—seeks to explain the two characteristics of being descriptive and prescriptive in constitutional theory, as Fallon believes these two characteristics to be.
A theory that completely denies the importance of a [constitutional] text will inevitably not encounter public acceptance in our legal culture and therefore cannot provide a basis for resolving issues about which there is no consensus.
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