Constitutional law’s twofold logic of inquiry into authorization and prohibition provides the basic structure for constitutional law reasoning. It also supplies the method by which constitutional lawyers break down into discrete, manageable questions the complex set of facts and legal claims that a difficult constitutional problem presents. Finally, as Chapter 2 discussed, this logic rests on several presuppositions that further shape the analysis of any constitutional problem. We can now begin to consider how to solve a problem once we have identified the questions of constitutional law it raises. The answer to a constitutional question that is at all perplexing, or controversial among competent lawyers, can seldom if ever be identified by simply pointing to the constitutional text. Questions that can be answered in that fashion (do Wyoming and California really elect the same number of senators?) do not give rise to serious constitutional law debate, however puzzling they may be from other perspectives.

Why should we play the game according to the rules? The central purpose of this book has been to describe the practice of constitutional law, not to justify or critique it. The focus has been entirely on what constitutional lawyers and judges actually do in attempting to solve constitutional law problems. I have simply assumed that what I am describing is what constitutional lawyers and judges ought to do. Most of the time, indeed, there is no need to go further. Lawyers are practical people with problems to solve and questions to answer, and as a practical matter lawyers with a constitutional problem that needs to be solved through law “ought” to engage in the practice I have described because if the lawyers don’t, whatever they say will not be recognizable as a legal argument.