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2 - Identifying the Problem

The Twofold Logic of Constitutional Law

Published online by Cambridge University Press:  05 May 2022

H. Jefferson Powell
Affiliation:
Duke University, North Carolina
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Summary

Constitutional law is a problem-solving activity. All problems in constitutional law, without exception, can be analyzed in terms of one or more questions, and all constitutional law questions, without exception, fall into one of two distinct categories: Does the Constitution authorize this governmental action? and does the Constitution prohibit this governmental action? This twofold logic of inquiry into authorization and prohibition guides the constitutional lawyer’s analysis of the problem in a constitutional controversy and provides the intellectual skeleton for constitutional law argument and decision. This chapter will first discuss how the logic of inquiry is used, and then will explain how the two questions are the product of the way the written Constitution is worded and of certain background presuppositions about its purposes.

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Publisher: Cambridge University Press
Print publication year: 2022

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  • Identifying the Problem
  • H. Jefferson Powell, Duke University, North Carolina
  • Book: The Practice of American Constitutional Law
  • Online publication: 05 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781009158855.003
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  • Identifying the Problem
  • H. Jefferson Powell, Duke University, North Carolina
  • Book: The Practice of American Constitutional Law
  • Online publication: 05 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781009158855.003
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Identifying the Problem
  • H. Jefferson Powell, Duke University, North Carolina
  • Book: The Practice of American Constitutional Law
  • Online publication: 05 May 2022
  • Chapter DOI: https://doi.org/10.1017/9781009158855.003
Available formats
×