Dependence and Hierarchy Among Constitutional Theories

Abstract

After two hundred years of constitutional decisionmaking, there is little consensus on the methods by which constitutional cases should be decided. Various theories, and combinations of theories, have their followers. Fashions come and go, but the field of contenders does not permanently narrow. Nevertheless, a measure of order can be brought to the confusion of the competing normative theories of constitutional decisionmaking. Although no particular normative theory is invariably better than the others, there are some crucial logical and practical dependencies of the theories upon rival theories.