Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency
![handle is hein.journals/denlr72 and id is 1005 raw text is: Too HARD:
UNCONSTITUTIONAL CONDITIONS
AND THE
CHIMERA OF CONSTITUTIONAL CONSISTENCY
FREDERICK SCHAUER*
The Provost of Harvard University, Albert Carnesale, has on his desk
three boxes. One is marked In. Another is marked Out. And the third
says, simply, Too Hard.
The Provost, who ought to know about things being too hard,' is on to
something. He has recognized that not all problems are soluble, that intractable
quandaries are part of the human condition, and that only in the academic's
perpetual fantasy is there necessarily an internally coherent and theoretically
elegant answer to every question the world might throw at us. As Ronald
Dworkin, contemporary legal theory's most prominent proponent of principles,
recognizes, not everything is a matter of principle.2
The lesson of the sign on the Provost's third box is an important one for
constitutionalists, and especially so for constitutional theorists. The sign on the
third box is a challenge to a prevailing mode of constitutional scholarship, one
that supposes that no problems are too hard for the theorist, even though they
may have been too hard for all previous theorists. Under this mode of think-
ing, there is, theoretically, an approach, an analytical method, a theory, a stan-
dard, a principle, or a test that can be applied to any constitutional problem.
This principle or approach may not be easily applied, but that is rarely the
point.
Instead, the point is one of constitutional ontology-about the deep struc-
ture of constitutional issues and constitutional doctrine. Under what appears to
be a common view of constitutional ontology, the correct solutions to constitu-
tional problems are like scientific observations. Just as scientific observations
are always explainable in theory, even if we have yet to discover that explana-
tion, so too, according to a common view, are all correct constitutional out-
* Frank Stanton Professor of the First Amendment, John F. Kennedy School of Govern-
ment, Harvard University. This is the written version of a contribution to a symposium on the
unconstitutional conditions doctrine held at the University of Denver College of Law on March
17-18, 1995.
1. As I write this, Carnesale is serving simultaneously as Provost, Dean of the Kennedy
School of Government, and Acting President of Harvard University.
2. See RONALD DWORKIN, LAW'S EMPmE 178-84 (1986) (discussing checkerboard laws)
[hereinafter DWORKIN, EMPIRE]; RONALD DWORKIN, A MATTER OF PRINCIPLE 72-103 (1985) (dis-
cussing the distinction between policies and principles) [hereinafter DWORKIN, PRtNCIPLE], RON-
ALD DWORKIN, TAKING RIGHTs SERIOUSLY 22-28, 71-80, 90-100 (1977) (same) [hereinafter
DWORKIN, SERIOUSLY].](ViewImageLocal?handle=hein.journals/denlr72&div=50&collection=&method=preview&ext=.png&size=3)
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Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency
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