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31 Wake Forest L. Rev. 383 (1996)
The Indeterminacy of Constitutions

handle is hein.journals/wflr31 and id is 397 raw text is: THE INDETERMINACY OF CONSTITUTIONS A.E. Dick Howard* INTRODUCTION In his Holmes Devise Lecture, General Propositions and Concrete Cases, Professor Cass R. Sunstein looks at two phenomena arising in legal reasoning.' The first is agreement on an abstraction, without agree- ment on what that abstraction entails.2 The second is agreement on a judgment in a concrete case, without agreement as to what considerations account for the judgment.3 Professor Sunstein describes these agreements as being incompletely theorized.'4 In this Comment on Professor Sunstein's lecture, I will focus on the first of the two phenomena-incompletely theorized agreement on a gen- eral proposition. Specifically, I consider written constitutions-their drafting and their text-to suggest reasons why constitutional provisions may be indeterminate. What factors account for constitutional proposi- tions being incompletely theorized? My interest here is in why constitu- tions are the way they are-what drafters do, and why.5 I. CONSTITUTIONS AS INTERMEDIATE NORMS We often talk about constitutions as being fundamental norms. In- deed, in most legal systems a constitution is the highest formal legal norm. This assumption is made explicit in the United States Constitu- tion's statement: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land . . . * White Burkett Miller Professor of Law and Public Affairs, University of Virginia. This essay develops themes advanced in my remarks as commentator on Professor Cass R. Sunstein's Oliver Wendell Holmes Devise Lecture, given at Wake Forest University in Octo- ber 1995. I am grateful to Mary Anne Case, Clay Gillette, Jack Goldsmith, Mike Klarman, and Ted White for their comments when this comment was in draft. I would also like to acknowledge the assistance of William S. Carnell and Susanne M. Harris in the preparation of this essay. 1. See Cass R. Sunstein, General Propositions and Concrete Cases (with Special Ref- erence to Affirmative Action and Free Speech), 31 WAKE FoREST L. REv. 369 (1996). 2. See id. at 369. 3. Id. 4. Id. 5. This essay is in the nature of a preliminary enquiry, consistent with the brevity associated with a Comment. 6. Or at least at the highest level; there may be other constitutional laws which enjoy the same legal status as the constitution, but even they are called constitutional. 7. U.S. CONST. art. VI.

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