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Article

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Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle, 94 Yale Law Journal 821 (1985)

Abstract

Constitutional theory would be important no matter what constitution we had. It is especially important because we have the Constitution that we do. The Constitution that we have is riddled with provisions best described as indeterminate. They are indeterminate in a particular sense: One who understands the language and laws of the nation can nevertheless find many different meanings in these clauses unless provided with a clear set of interpretive rules. Providing these rules—and thereby providing the substantive underpinning for constitutional adjudication—is probably the most vital task that constitutional theory must perform.

Conventional constitutional theory, however, is thought by some critics to be in extremis. It is said to be poisoned with value preferences disguised as neutral rules. There is no cure, these critics contend, because each conventional theory carries with it the same fatal disease. By setting forth rules of interpretation, modern constitutional theory seeks to set limits on the institution of judicial review. But according to the critics, principled limits cannot be located in the text of the Constitution—the document that purportedly grants the courts license to do what they do—because the provisions to be interpreted lack clear, inherent meanings. If this is so, the critics continue, then constitutional adjudication as we have come to know it is incompatible with the tenets of constitutionally limited majoritarian government, and hence, by its own terms, is illegitimate. Constitutional theorists generally concede that the conclusion would be right if the premise were. But principled limits are available, they contend, and by finding those limits (and perhaps overturning a few wrongly decided cases) we can rescue constitutional adjudication.

Date of Authorship for this Version

1985

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