The University of New Hampshire Law Review
[Excerpt]”Many scholars have observed that the Constitution of the United States can be understood as an example of what Cass Sunstein calls an “incompletely theorized agreement.” The Constitution contains a number of extremely general terms, such as “liberty,” “necessary and proper,” and “due process.” The Framers of the Constitution, it is suggested, did not attempt to specify precisely how each of these principles would operate in every case. On this view, the Constitution is incompletely theorized in the sense of representing “a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.” For example, the Framers presumably could have agreed on the value of liberty in the abstract but disagreed sharply on its application to slaves.
There is, however, another sense in which the Constitution can be seen as an incompletely theorized agreement. This second sense has received less attention in the existing scholarship, perhaps because it appears to conflict with the first. According to this sense, the Constitution is remarkable for containing so little theory and so few statements of general principle. What the interpretations of the Constitution in the previous paragraph take to be statements of general principle are, on closer inspection, almost never merely statements of principle. Outside of its errata and signatures, the Constitution of 1787 consists of only two elements: the single, performative sentence of the Preamble and the series of commands and permissions that make up the body of the document. Neither of these elements offers abstract, theoretical statements of general principle. On the one hand, the performative Preamble is not, strictly speaking, a descriptive statement at all; it is a performative enactment of the will of “the People” ratifying the Constitution at conventions across the thirteen states. On the other hand, every clause in the body of the document, without exception, is constructed around either a “shall,” a “may,” or a “shall not.” In grammatical form and function, these clauses are not theoretical justifications or elaborations. They are highly pragmatic directives.”
Gregory Brazeal, A Machine Made of Words: Our Incompletely Theorized Constitution, 9 U.N.H. L. REV. 425 (2011), available at http://scholars.unh.edu/unh_lr/vol9/iss3/5
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