Nicole C. Roughan, Yale


This article examines an unexplored question behind the literature on organic or popular constitutionalism: if the constitution is expansive, taking in more than strict textual rules, then what tools do we need in order to identify its contents and examine how they fit together? Here the author examines one potential candidate for this task: the positivist device of a “Rule of Recognition,” and suggests that there are six key difficulties with using a rule of recognition to identify the contents of an expansive constitution. First, is the threshold question arising from the jurisprudential debates over the rule of recognition: can a rule of recognition ever mark out or identify anything, or is it simply a conceptual tool? The second asks whether the changing criteria for the expansive constitutional canon affect the plausibility of using a rule of recognition to identify that canon. Third, is there a theoretical redundancy generated by relating a practice-based rule of recognition to an expansive constitution? Fourth, does the constitution embody moral rules with content-dependent authority which contrasts with the social rule account of the rule of recognition? Fifth, would a rule of recognition-based account of the constitution leave out significant features of the constitution, such as its legitimacy? Lastly, does the constitution, when disaggregated, have foundational components of its own which the rule of recognition could not account for? These difficulties suggest that a rule of recognition fails to explain important aspects of the constitution, and while a plausible tool for capturing some of the constitution’s content, is not the most useful device for theorizing an expansive account of the U.S. constitutional canon.