3 - Solving Constitutional Problems

Summary

Constitutional law’s twofold logic of inquiry into authorization and prohibition provides the basic structure for constitutional law reasoning. It also supplies the method by which constitutional lawyers break down into discrete, manageable questions the complex set of facts and legal claims that a difficult constitutional problem presents. Finally, as Chapter 2 discussed, this logic rests on several presuppositions that further shape the analysis of any constitutional problem. We can now begin to consider how to solve a problem once we have identified the questions of constitutional law it raises. The answer to a constitutional question that is at all perplexing, or controversial among competent lawyers, can seldom if ever be identified by simply pointing to the constitutional text. Questions that can be answered in that fashion (do Wyoming and California really elect the same number of senators?) do not give rise to serious constitutional law debate, however puzzling they may be from other perspectives.