Positive constitutionalism means not only describing but also theorizing about elemental questions of constitutional structure and theory. Key positive questions include: Why do certain constitutional forms emerge and survive? What is the role of political choice, by legislators and by citizen voters, in constructing constitutions and constitutional discourse? What is the relationship between constitutionalism and constitutional law? By normative constitutional theory, I mean the critical evaluation of constitutions. The key normative question is: What ought a particular constitution say? Those of us interested in both positive constitutionalism and normative constitutional theory would like to think that we are bringing together the inquiries of both of these areas-not only to reiterate the trivially true point that there are inevitably normative elements in positive constitutionalism and vice versa, but also to further the agenda of improving constitutions and constitutional law. Therefore, we resist the traditional division of functions between those who are preoccupied with positive constitutionalism and those who toil primarily on normative questions.
Daniel B. Rodriguez,
State Constitutionalism and the Domain of Normative Theory,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol37/iss2/5