Common-Law Constitutionalism and the Limits of Reason
View/ Open
SSRN-id969527.pdf (194.2Kb)
Access Status
Full text of the requested work is not available in DASH at this time ("dark deposit"). For more information on dark deposits, see our FAQ.Author
Published Version
http://www.jstor.org/stable/40041740Metadata
Show full item recordCitation
Adrian Vermeule, Common-Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482 (2007).Abstract
In recent years, the central claim of common-law constitutionalism has been that precedent and tradition embody some form of latent wisdom. Judges will generally do best by deferring to the wisdom embodied in precedent and tradition, rather than trusting to their unaided reason. In what follows, I offer a critical analysis of this family of claims. Drawing throughout on Jeremy Bentham's critique of the subconstitutional common law, I conclude that the constitutional common law is not plausibly seen as a repository of latent wisdom, at least not to any greater extent than statutes and other nonjudicial sources of law. The mechanisms advanced by common-law constitutionalists suffer from infirmities of internal logic and from a failure to make the necessary institutional comparisons between and among precedent and tradition, on the one hand, and the outputs of legislatures, executive officials, and constitutional framers on the other.Terms of Use
This article is made available under the terms and conditions applicable to Other Posted Material, as set forth at http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAACitable link to this page
http://nrs.harvard.edu/urn-3:HUL.InstRepos:12019087
Collections
- HLS Scholarly Articles [1856]
Contact administrator regarding this item (to report mistakes or request changes)