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There is a chance that Bush v. Gore may begin a process of laying a more attractive and realistic foundation for constitutionalism than the Official Story provides. The very fact that the Court is not politically independent and that it could not settle the matter in a disinterested, apolitical fashion might set us down a path toward a more mature version of constitutional law. The politically tendentious character of the Coon's reasoning demonstrates that our core constitutional commitments are subject to political manipulation. Ironically, public understanding of this malleability makes our politics more, rather than less, inclusive. It does so by suggesting that constitutional law, properly understood, does not settle disputes by ruling certain substantive positions out-of-bounds. Thus, losers in our political disputes need not believe that they are outside the boundaries of respectable argument, defined by an exclusionary constitution. Instead, they may come to understand that they too can utilize the magnificently empty rhetoric of constitutional law to achieve their ends. The upshot is continuing and unresolved struggle over the meaning of American democracy. It is this possibility of struggle, rather than a legally definitive resolution, that encourages people with incompatible political views to remain in an ongoing and peaceful dialogue with each other.

Publication Citation

47 Wayne L. Rev. 953-1026 (2001)