Open Access. Powered by Scholars. Published by Universities.®

Jurisprudence Commons

Open Access. Powered by Scholars. Published by Universities.®

Philosophy

PDF

University of Pennsylvania Carey Law School

2018

Unwritten

Articles 1 - 1 of 1

Full-Text Articles in Jurisprudence

Our Principled Constitution, Mitchell N. Berman Jan 2018

Our Principled Constitution, Mitchell N. Berman

All Faculty Scholarship

Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …