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Sherry on Sound Constitutional Doctrine

By Lawrence Solum

Suzanna Sherry (Vanderbilt Law School) has posted The Four Pillars of Constitutional Doctrine (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct constitutional outcome but even about the right approach to constitutional interpretation. We are unlikely to reach consensus on whether we should read the Constitution as a living and evolving document or instead read it in accordance with a fixed original meaning, much less on whether it does or does not protect campaign contributions, reproductive rights, affirmative action policies, gun ownership, or any of the other contested issues that have recently come before the Supreme Court.

Nevertheless, I believe that we can find an important degree of common ground by focusing on the essential elements of sound constitutional doctrine as an abstract matter. Even if we cannot identify standards to evaluate outcomes or approaches, we can at least specify the minimum requirements for sound doctrine. Thus we can come to agreement about how to evaluate the Supreme Court (and its Justices) at some basic level. In this Article, I identify the four necessary pillars underlying sound constitutional doctrine. By doing so, I hope to begin a conversation about the courts and the Constitution that, unlike most such conversations, does not end in a political impasse.

The Article proceeds as follows. Part I sketches out the four pillars of constitutional doctrine. Part II provides a practical illustration of these essential principles by using them to test the soundness of a recent little-noticed Supreme Court case that I believe violates all four principles. Part III broadens the focus to examine other recent Supreme Court cases, demonstrating the usefulness of my four pillars to critique judicial output independent of political valence.

Highly recommended.

Full post as published by Legal Theory Blog on July 27, 2010 (boomark / email).