Part I of this Commentary examines the conversational model of politics. I argue that the virtues Bennett finds in the conversational model exist only when, and to the extent that, participants in civil and political society can engage in undominated conversation. The requirement that conversation be undominated generates a substantial set of social prerequisites, mostly dealing with equality. And yet, determining what social arrangements actually satisfy those prerequisites is itself a matter of constitutional controversy. Resolving such controversies through politics is no solution, because the political arena is where we seek to ensure that nondomination prevails in civil society, and, in turn, to ensure that nondomination prevails in political society. The courts might seem a promising alternative. Part II of this Commentary examines the contemporary Supreme Court's participation in our constitutional conversations. After noting the ways in which the Court might be seen as a voice in the wilderness, speaking to no one but itself, I raise questions about the need for judicial participation in a conversation structured by the Constitution. Part II concludes with a more extended discussion of the contemporary Supreme Court as an institution that seeks to dominate its conversational partners. Resolving the controversies over what constitutes an appropriate condition of nondomination through the courts would require that the Court itself renounce the authoritarianism it has lately exhibited. My own view is that American constitutionalism has developed to the point where such a renunciation is extremely unlikely. But one can always hope.
95 Nw. U. L. Rev. 907-920 (2001)
Scholarly Commons Citation
Tushnet, Mark V., ""Shut Up He Explained"" (2001). Georgetown Law Faculty Publications and Other Works. Paper 262.