A Theory of Power

Lino Graglia

Constitutional law is not a difficult or mysterious subject; the Constitution is a short and simple document, and very few of its provisions play even a nominal role in the making of constitutional law. The need for anything as portentous as a “constitutional theory”—exactly what are the puzzling phenomena requiring explanation?—is therefore not entirely clear. The function of current constitutional theory, however, is not to aid understanding of the Constitution or of the nature and source of constitutional law, but instead to offer justifications for what the Supreme Court has done in the last three decades, entirely without constitutional warrant, in the guise of enforcing the Constitution.

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Lino Graglia

Constitutional law is not a difficult or mysterious subject; the Constitution is a short and simple document, and very few of its provisions play even a nominal role in the making of constitutional law. The need for anything as portentous as a “constitutional theory”—exactly what are the puzzling phenomena requiring explanation?—is therefore not entirely clear. The function of current constitutional theory, however, is not to aid understanding of the Constitution or of the nature and source of constitutional law, but instead to offer justifications for what the Supreme Court has done in the last three decades, entirely without constitutional warrant, in the guise of enforcing the Constitution.