AbstractThe dominant approach to constitutional law, and even more so to constitutional theory, has historically been judicial review-centred. Constitutional scholarship has often seemed ‘strong on positions and weak on analysis’, based on ‘foundationalist'/organic theories of judicial review, trying to justify or to reject the practice in toto and dictating its parameters. Behind such strong positions, and behind the search for ‘first-best principles’ of legitimacy, one can see a series of latent and intractable tensions, inherent in traditional constitutional theories of interpretation and adjudication: these tensions are the consequences of the unavoidably creative function of the judicial role. A pragmatic, second-best inquiry must probe the degree of such creativity, focusing on the questions of mode, limits, level of acceptability of law-making through the courts, and issues of institutional performance and systemic effects of adjudication. In light of all this, the paper will provide a taxonomy of ...