The Final Cause of Constitutional Law

AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 549

Part IV of this book discusses the final cause of constitutional law - its purpose and that towards which it is becoming. In one sense, the final cause, or purpose, of constitutional law is the resolution of disputes, and thus the creation of a body of decisions, by courts or other actors, that establish and apply constitutional doctrine. In a larger sense, the final cause is the beneficial result for society in having a legal system that provides for reasoned debate on fundamental issues and their authoritative resolution - resolutions that are final for the time being, but that are subject to change. Part IV explores and evaluates the changing substance of these many "final" resolutions, and their intended and actual effects in society.

Two kinds of issues exist in constitutional law. First, there are structural issues concerning the relationships among the branches of the federal government and between the federal government and state governments. These issues are discussed in Chapters 17-20. Second, there are issues that deal with the relationships between governments and individuals, or, for the 13th Amendment that outlawed slavery, create individual rights against other individuals as well as governments. These doctrines are dealt with in Chapters 21-32. One aspect of each doctrine is important to emphasize at the outset: for every issue, if the government has a valid reason to act, that reason makes the action constitutional, even if other reasons for the act are not constitutionally valid.

With respect to both structural and individual rights issues, the cases and the doctrines they establish and apply reflect the four judicial decisionmaking styles. These styles were introduced in Chapters 1-4; their use of text, purpose, context, history, legislative and executive practice, judicial precedents, and prudential considerations were discussed in Chapters 5-8; their specific manner of constitutional law decisionmaking were discussed in Chapters 9-12. The cases also reflect the perspectives characteristic of the various eras in American law described in Chapters 13-16: traditional natural law, formalism, Holmesian, instrumentalism, and modern natural law. In addition, the discussion in Part IV addresses the views of various commentators on the Constitution. This discussion includes classic commentary, such as by Alexander Hamilton and James Madison in The Federalist Papers in 1788, or Justice Story in his 1833 work, Commentaries on the Constitution...

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