"Theory"

[Michael McConnell]

The difference between constitutional "theory" and torts
theory, in my view, is that tort law concerns itself only
with the substance of the rule and is essentially
unconcerned about the sources for the rule or the
legitimacy of making the rule. Constitutional
decisionmaking needs not only to come up with a sensible
rule but also to connect that rule, in some way, to text,
history, or some other intelligible method of
interpretation. Common law judges in torts cases have the
power to make the rules (at least in these crude post-legal
realism days). Constitutional judicial review does not give
judges the power to make the rules, but only to overrule
the decisions of representative branches under certain
circumstances. Hence the need for "theory."

-- Michael McConnell (U of Utah)