As constitutional actors, legislatures are accustomed to asserting their understanding of the constitutionality of the legislation they enact. They are also not uncommonly engaged in constitutional disputes with other constitutional actors. At times, they appear to be avoiding their constitutional role, informally “delegating” it to another actor, and for this they are likely to be subject to criticism. But are there times legislatures – and legislators – stand back, suspend judgment, and engage in what I am calling “constitutional agnosticism”? Are there times when they should be?

Whether constitutions are limited to institutional organization or are aspirational, written or unwritten or a hybrid, easy or difficult to amend, one thing they must do is help maintain stability in the country, at least sufficient to allow for orderly transition of power within a recognized government structure. At a higher level, the constitution may play a much greater role in shaping common values or in allowing a regular “conversation” about identifying and defining the values that “matter.” Without saying that both of these are functions the Constitution must fulfill, they are important functions that constitutions do fulfill and the first, if the country is to function at all, must be filled in some manner or under some authority.

The constitution's capacity to meet these goals of stability, orderly transition, and/or shaping of the nation's value structure depends on the extent to which it is recognized as “legitimate” by the public or by those who have been acknowledged as “speaking for” the public.