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date: 21 January 2021

Abstract and Keywords

This chapter asks whether U.S. constitutional law is really law or is instead, as some skeptics say, just a disguised form of politics. The skeptics argue, among other things, that the Constitution is too vague to limit officials, that judges’ decisions about constitutional issues reflect their political views, and that the Constitution is an ineffectual “parchment barrier” against political power. But some important provisions of the Constitution are actually very clear, and judicial precedents can make vague provisions precise. Moreover, all law is, in a sense, a parchment barrier that ultimately depends on officials’ conscientiousness; constitutional law may differ in degree but not in kind. The skeptics’ central error may be a tendency to identify constitutional law too closely with the text of the document. Once U.S. constitutional law is seen as, in important respects, precedent-based common law, its law-like character becomes much more apparent.

Keywords: constitutional law, law, politics, legal institutions, Constitution, parchment barrier, police officers, Fourth Amendment

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