The Nature of Constitutional Concepts

If we do not want to pretend that legal expressions have some kind of ontological ‘essence’, then we have two (‘anti-essentialist’) options: either (1) we should view their meanings as their role played in the constitutional discourse (description of the usual meanings of legal terms), or (2) we should recognize that the definition and re-definition of constitutional concepts are never just descriptions, but they are rather suggestions about their meanings which are consistent with our political preferences. The latter option, which I believe is nearer to the reality of constitutional discourses than the first one, means that there is an ongoing political struggle over who defines concepts and how, and concepts are viewed something like squares on a chessboard which can be occupied. Thus, when we ‘describe’ the constitutional concepts we actually do not just describe them but rather implicitly prescribe a use which favors our political preferences.