Document Type

Article

Publication Date

1996

Abstract

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells stories about our collective past -- our political and social history -- to support the results for which it argues.

Nevertheless, LaRue makes clear that criticism of this sort is not his mission. He believes that the Court's misreadings and mistellings of the historical record, like courts' misreadings of fact and precedent, are inevitable and not altogether undesirable. In his book, LaRue shows that the Court uses these stories, which are most assuredly about our past, not so much to tell us the truth about that past, but to establish what might be thought of as foundational myths which then render our constitutional law persuasive. It is therefore a mistake to criticize or even praise these judicially created stories solely by reference to their historical accuracy. Rather -- and precisely because they are fiction (or myth), and in some sense are written and intended to be taken as such -- they should be evaluated as fiction (or myth). We need ask of these stories not whether they are historically accurate but whether they are true or false as stories, whether they illuminate something important about our lives that the complexities, ambiguities, and uncertainties of historical truth would obscure.

This Essay has three parts. In the first part, I will provide a somewhat different account to the question at the heart of LaRue's book: the nature of the "truth" about our society that a judicially authored "story" might possess when that story purports to be about our past, but actually departs in significant particulars from historical fact.' In the second part of this Essay, I examine some of the costs attached to this general practice both on and off the Court." In the third and final part of this Essay, I will explore one sort of more or less true story used by the Supreme Court to buttress its affirmative action jurisprudence.

Publication Citation

53 Wash. & Lee L. Rev. 995 (1996)

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