OUR PRINCIPLED CONSTITUTION.

• Author: Berman, Mitchell N.

INTRODUCTION 1328 I. A BRIEF HISTORY OF AMERICAN CONSTITUTIONAL THEORY 1335 A. Prescriptive Pluralism: A Whirlwind Tour 1337 B. Originalism and the Constitutive Turn 1340 1. Prescriptive Originalism 1340 2. The Turn 1341 3. Difficulties 1344 C. A Dip Into Jurisprudence: Hart and Dworkin 1348 1. Hartians and the Problem of "Too Little Law" 1348 2. Dworkin and the Problem of "Too Much Morality" 1350 D. Summary 1353 II. AN EVEN BRIEFER METHODOLOGICAL INTERLUDE 1354 III. PRINCIPLED POSITIVISM 1358 A. The Account Introduced 1360 1. Three Cuts at the Normative Landscape 1360 2. The Social-Factual Grounds of Standalone Artificial 1362 Norms 3. From Standalone Norms to Systemic Norms 1364 4. Summary an Clarification 1368 B. How Principles Make Rules: An Illustration 1370 C. Principled Positivism and Constitutional Theory 1376 1. Pluralism 1377 2. Unwritten Constitutionalism 1378 3. Popular Constitutionalism 1379 4. Living Constitutionalism 1381 IV. OUR CONSTITUTIONAL PRINCIPLES 1383 A. Preliminaries 1384 B. Ten Clusters: A First Bid 1386 C. Observations 1390 1. Principles as Clusters 1390 2. Princip;es Sought and Principles Lost 1390 3. Fundamental and Derivative Principles Revisited 1391 V. OUR PRINCIPLES AT WORK 1393 A. Illustrations 1393 1. Anti-commnadeering 1395 2. A Thirty-Four-Year-Old President? 1396 3. Partisan Gerrymandering 1398 4. National Regulatory Power 1400 5. Liberty and Equality 1406 B. Observations 1410 1. Everybody Loves Principles 1410 2. Principled Positivism is Nonpartisan 1410 3. Principled Positivism Has Explanatory Power 1411 Conclusion 1411 INTRODUCTION

Suppose that you and I disagree about some matter of constitutional law. You believe, let us imagine, that transgender persons have the constitutional right to use public restrooms that accord with their gender identity. I maintain that they don't. Or I contend that the Constitution prohibits excessive partisanship in redistricting, while you say that partisan gerrymandering, no matter how extreme, is constitutionally permitted. Disagreements of this sort are entirely common. What, in such cases, do we disagree about?

Let us start by clarifying what we are not disagreeing about--or at least needn't be. First, we needn't be disagreeing about the dictates of morality or justice. For example, even while denying that transgender persons have the constitutional rights that you claim they do, I could fully accept your account of the relevant moral rights. We could well agree, say, that justice or decency requires states to allow transgender persons to use the public restrooms they feel comfortable with, differing only on whether the Constitution requires that too. Second, we needn't be disagreeing about what the courts should do. Though I think (as you do not) that extreme partisan gerrymandering is unconstitutional, I might, after bemoaning the lack of "judicially manageable standards" in this neighborhood of the political thicket, believe (as you do) that courts shouldn't intervene.

So we needn't be disagreeing about morality or about what judges should do. If surface appearances are to be credited, we are disagreeing about "what the law is," as Chief Justice Marshall put it. (1) We are agreeing that there is constitutional law, and are disagreeing about some of its contents.

What explains these disagreements? Sometimes we disagree about what the law is because we disagree about some non-legal fact. We may disagree about what some historical practice was, or about what some persons intended, or about what some court said, or about what justice requires. Perhaps more frequently, though, we disagree about what the constitutional law is because we disagree about the legal significance of some non-legal fact. We disagree about whether or how much it matters, legally speaking, that historical practice has been what it was, or that the text's authors intended what they did, or that a court said what it said, or that some given practice will or won't promote justice. That is, many of our disagreements about constitutional law, and especially our most heated disagreements, concern what makes it the case that our constitutional rights and duties, powers and permissions are what they are. They concern what Ronald Dworkin called "the grounds" of our constitutional law. (2)

It will prove convenient to have a term for accounts of a general and theoretical nature that explain how constitutional "norms"--rights, powers, rules, prohibitions, and the like--have the contents they do. Let's call any such account a "constitutive theory" of constitutional law. What are the grounds of constitutional norms (and what is the nature of the function that maps the grounds to the law)? What makes out the law? What makes it the case that the constitutional law is this rather than that? What are the fundamental determinants of true constitutional norms? How does our constitutional law gain the content that it has? In virtue of what is the law what it is? What are the truthmakers for true legal propositions? These are many different ways of asking what I am taking to be more or less the same question. (They are not all reformulations of the exact same question, just close enough for present purposes.) What I am calling a "constitutive theory" is an attempt to answer it. (3)

Anyone who finds herself in a constitutional disagreement has reason to want a good constitutive theory of constitutional law. To be sure, a constitutive theory is not all that those of us interested in constitutional adjudication should want. We should also want to know when, if at all, courts may or should: refrain from reaching the constitutional merits entirely, (4) or underenforce constitutional rules, (5) or craft doctrine to administer or implement constitutional rules in a fashion that is sensitive to institutional limitations, (6) or make rules when existing constitutional rules are underdetermined or undiscoverable. (7) A comprehensive theory of constitutional law and adjudication would have space for theses about these varied topics. But constitutive theories are surely among the important things we should want. And we should reasonably expect constitutional theorists to supply them. If not constitutional theorists, then who?

Happily, the theoretical literature on American constitutional law is vast. Unhappily, the vast literature has delivered strikingly few constitutive theories to choose from. Contemporary scholarly fashions distinguish two broad schools of constitutional thought, two competing camps of "constitutional interpretation": originalism and nonoriginalism. Many of the most prominent originalists do indeed offer a constitutive theory, I will argue, but one that's extremely implausible. Many nonoriginalists, in contrast, offer plausible prescriptions regarding how judges should reason in constitutional cases, but not a constitutive theory. In short, insofar as we're seeking a constitutive theory, originalists proffer the wrong answer to the right question, while nonoriginalists simply change the subject.

This Article offers an original constitutive theory of American constitutional law. The account is positivist, pluralist, and inherently dynamic. Here's the summary.

Start with the more-or-less familiar distinction between two kinds of legal norms: "rules" and "principles." I deem the distinction only "more or less" familiar because, although the terms are in wide usage, and many commentators agree that they mark some distinction of importance, the precise nature or location of that distinction remains, in the words of the German legal theorist Robert Alexy, "dogged by confusion and controversy." (8) For our purposes, rules and principles differ in just a single respect: rules are sufficiently determinate to adequately serve the system's core conduct-guidance function, whereas principles do not purport to determine action but rather have, as Dworkin famously emphasized, a dimension of weight. (9) They may "bear on" the proper legal characterization or treatment of a dispute without purporting to deliver decisive resolution.

Consider a representative sampling of constitutional norms: Legally enforced racial segregation in public education is unconstitutional. Nonconsenting states are immune from suit brought by private individuals; Congress, however, may abrogate state immunity when legislating pursuant to its section five enforcement power. Criminal defendants have the right to a speedy and public trial. State legislative districts must be equipopulous. These norms differ in many respects--in their subject matter, their Hohfeldian character (claim-rights, powers, immunities), their distance from the constitutional text. But each is what I will call a "constitutional rule." (10) By and large, a "constitutional rule" could be stated as an affirmative or negative answer to a well-formulated constitutional question on appeal or certiorari. Question: "Does the denial by a state court of a request by an indigent defendant for the appointment of counsel to assist him at a trial for a serious criminal offense constitute a deprivation of the defendant's rights in violation of the Fourteenth Amendment?" (11) Answer: yes, (it is a constitutional rule that) a state court is required, if requested, to appoint counsel to assist an indigent defendant charged with a serious criminal offense.

Principles will often be harder or more controversial to identify and formulate. Dworkin considered their lack of canonical formulation a defining characteristic. (12) But paradigmatic and little-disputed examples wear their status as principles on their sleeves. We don't merely invoke principles of separation of powers, federalism, sovereign immunity, personal liberty, stare decisis, and so on; we call them "principles" when doing so.

My account turns this mostly familiar distinction into a two-level explanation. Constitutional rules are determined by the interactions of our constitutional...