Academic

Himma on the U.S. Constitution & the Rule of Recognition

By Lawrence Solum

Kenneth Einar Himma (Seattle Pacific University) has posted Understanding the Relationship between the U.S. Constitution and the Conventional Rule of Recognition (THE RULE OF RECOGNITION AND THE UNITED STATES CONSTITUTION, Matthew D. Adler, Kenneth Einar Himma, eds., Oxford University Press, 2009) on SSRN. Here is the abstract:

Legal theorists specializing in constitutional theory have tended to regard positivism and other conceptual theories as irrelevant; the idea is that a theory of the concept of law cannot tell us anything that helps to solve difficult normative and descriptive substantive issues of constitutional theory.

While there is something to this complaint, there is at least one substantive non-normative issue worth pursuing - and I attempt to pursue it here. In particular, I attempt to determine how the Constitution and rule of recognition are related by examining the practices of officials. This will not solve any interesting issues of constitutional theory, but it entails that judicial supremacy extends further than is commonly assumed, making the morally normative issues associated with this practice in a democratic system of governance even more difficult.

Highly recommended.

Full post as published by Legal Theory Blog on September 25, 2008 (boomark / email).