F. A. Hayek and Levels of Generality in Constitutional Interpretation
Most constitutional provisions that come before the courts are written in general—and seemingly categorical—terms. Often, the text alone cannot resolve disputes about their meaning. At what level of generality should judges read these provisions? What ends should a court pursue in choosing the level? Should it ask a normative policy question or an objective historical one? And if a court takes a historical approach, how should it transform specific examples of our traditions into general rules that govern today? The work of F. A. Hayek contains surprising insights that help resolve each of these questions.
Cite as Eric E. Murphy, F. A. Hayek and Levels of Generality in Constitutional Interpretation, 19 N.Y.U. J.L. & Liberty 213 (2026).