A Theory in Search of a Court, and Itself: Judicial Minimalism at the Supreme Court Bar

Document Type



The most up-to-date version of this piece can be found in the Duke Law Scholarship


According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions.1 As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance.2

Date of Authorship for this Version

November 2005