Publication Date

1999

Publication Title

California Law Review

Abstract

Just what is constitutional theory? How can it be, as Professor Fallon rightly says, that constitutional theory is both descriptive and prescriptive, and is supposed to produce results that seem morally right but also some results that make the theory's proponents uncomfortable? In this Reply, Professor Strauss argues that a constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to resolve more controversial issues. In our culture, for example, there is widespread agreement both on abstract principles- such as the idea that the text of the Constitution is important but that precedent also matters in interpreting the Constitution-and on specific points of law, such as the legitimacy of the decision in Brown v. Board of Education. A constitutional theory tries to organize these and other points of agreement in a way that prescribes results in cases where there is no agreement. So understood, a constitutional theory is comparable to an account of the rules of grammar for a language, or perhaps to a theory of scientific or mathematical truth.

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