This paper engages in a time-honored inquiry in American jurisprudence, an inquiry which continues to be invigorated by contemporary studies in Constitutional Law. It is an inquiry into the determinacy of the American Constitution as a legal text, taking into account that it was drafted and approved more than two hundred years ago with the purpose, arguably, to organize present and future political decision-making. Some contemporary authors claim that the discussion about the role of the Constitution is muddled, and that to acknowledge its authority does not necessarily entail a theory of constitutional interpretation. Furthermore, other authors have claimed that different accounts of what American constitutionalism stands for have appeared in different moments of time, and none of them describe accurately the constitutional experience. These arguments raise legal issues that are very significant; given that the Constitution sets a general framework for democratic politics, should it be interpreted as a strategy the limits majoritarian decision-making in order to prevent it from depriving the rights of present minorities or future generations? Or should present-day majorities be allowed to break free from the constitutional constrains and govern themselves as they consider adequate, and let future majorities sort out how they want to govern themselves as well? Or does the Constitution represent a middle-ground compromise between past, present and future majorities, that creates a form of democratic government while at the same time constraining what present majorities can impose on future ones?
- Constitutional Law,
- Legal Indeterminacy
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