May 11, 2011

Trying Too Hard To Understand the Constitution?

John F. Muller, Yale Law School, has published The Common Law Culture and the Enlightenment Ideal. Here is the abstract.

In this Article, I argue that some truths about our constitutional system are best left misunderstood. I make this argument by defending a self-deception at the core of our collective self-understanding. We often speak as if our constitutional system rests on an uncompromising inquiry into constitutional meaning. I contest the descriptive accuracy of this conventional wisdom yet defend the normative value of its perpetuation. The notion that we uncompromisingly pursue true constitutional meaning, I argue, derives from a deep constitutional commitment to Enlightenment thought. This notion, however, ignores a comparably deep constitutional commitment to the common law tradition, which privileges some considerations ahead of true constitutional meaning. Although we pay fealty to Enlightenment, we follow a contradictory path informed by both the Enlightenment ideal and the common law culture. This contradictory state of affairs and the misunderstanding upon which it rests, I argue, perpetuate a redemptive vision of our constitutional system vital to its preservation.
Download the paper from SSRN at the link.

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