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date: 23 October 2019

Abstract and Keywords

Public law scholars whose scholarship focuses primarily on the public conflicts between constitutional authorities fail to appreciate how constitutional law influences politics and judicial decision making in the United States. Legal norms better explain how constitutional controversies are structured than how they are resolved. Basic principles of constitutional law help secure legal agreement in the face of political disagreement. When political disagreements are resolved into legal disagreements, basic principles of constitutional law alter the terrain on which those conflicts are fought. This article examines how and why constitutional law influences both judicial and public decision making. It discusses the tendency for political scientists to first claim that constitutional law is no different to other forms of policy-making, observes how those claims are almost always qualified in practice, and points to problems with the standard qualifications. The article then considers policy and law in constitutional decision making.

Keywords: United States, constitutional law, politics, judicial decision making, political disagreements, legal disagreements, policy, constitutional decision making, policy making

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