Mitchell N. Berman (University of Pennsylvania Law School) has posted Our Principled Constitution on SSRN. Here is the abstract:
Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.
Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a “constitutive theory” of constitutional law. It is obvious that we do not all share a constitutive theory. It is less obvious, and strikingly underappreciated, that we have precious few candidates to choose from. We have many “prescriptive theories” regarding how judges should exercise the power of judicial review, but few of them have clear, let alone complete, constitutive implications.
This Article presents an original constitutive theory of American constitutional law. It starts by distinguishing two types of constitutional norms: “constitutional principles” and “constitutional rules.” It then argues: first, that rules are determined by the interaction of principles, which combine to produce rules on the model of force addition; and second, that the principles are “grounded” in mental states, speech-acts, and behaviors of persons who make up the constitutional community, much as rules of fashion or of card games are grounded in behaviors of persons who make up their normative communities. In short: social facts determine constitutional principles, and constitutional principles determine constitutional rules. I call the account “principled positivism.” It is positivist, pluralist, and inescapably dynamic.
If principled positivism is correct, then we come to know our constitutional rules by discerning the contents, contours, and weights of the constitutional principles currently in force. Accordingly, the Article offers a preliminary and partial inventory of our constitutional principles—principles concerning the legal significance of what the enacted text says and about what its authors intended; principles about the force of judicial precedents and of extra-judicial practices; principles about the locus of sovereignty, the distribution of governing power, and the demands of liberty and equality. It then puts the principles to work, illustrating their operation in a handful of actual constitutional controversies, ranging from same-sex marriage to the scope of Congress’s commerce power.