Document Type

Article

Publication Date

2005

Abstract

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described as the process of constitutionalization. The counter-majoritarian Court takes an action that would be viewed as having questionable legitimacy if the political or normative nature of the action were apparent, but the Court legitimates that action by arguing that the action is actually compelled by the Constitution. Among the analytical techniques that the Court uses to constitutionalize its policy preferences, three are of particular interest--as are their vulnerabilities. First, the Court often adopts tacit analytical baselines to mask the unstated political assumptions on which its constitutional assertions rest. However, the technique of baseline shifting can often be used to illuminate those baseline assumptions in a way that deprives the Court's arguments of their persuasive power. Second, the Court often adopts a tacit level of generality in conducting legal analysis that is designed to increase the intuitive appeal of the Court's arguments. However, by re-analyzing the Court's arguments at a different level of generality, those arguments can often be shown to rest on unsupported political preferences that the Court has adopted. Third, the Court typically structures its arguments in a syllogistic form designed to show that the Court's conclusions follow logically from a set of non-controversial starting assumptions that the Court has made. However, the Court's arguments can often be deconstructed to show that the Court's own starting assumptions lead not to the conclusion reached by the Court, but rather to the opposite conclusion. Although the use of these techniques is not limited to the realm of constitutional law, the meaning of the Constitution is heavily dependent upon the manner in which these techniques are invoked. Therefore, teaching how the process of constitutionalization works is a good way to teach both the pragmatic and theoretical dimensions of constitutional law.

Part II of this article discusses the concept of constitutionalization. Part II(A) discusses the manner in which legal realism supplanted doctrinal formalism as the prevailing conception of judicial review. Part II(B) discusses the emergence of constitutionalization as a means of protecting the legitimacy of judicial review from the insights of legal realism. Part III discusses the rhetorical techniques that the Supreme Court often uses to constitutionalize normative preferences and the ways in which those techniques can be manipulated to expose the political nature of the Court's decisions. Part III(A) discusses the technique of baseline shifting. Part III(B) discusses the technique of manipulating levels of generality. Part III(C) discusses the technique of deconstruction. Mastering the use of these techniques will not only help us decode what the Supreme Court is doing when it announces constitutional rules, but it will also help us to formulate arguments that we ourselves can use when we ask the Court to constitutionalize our own normative preferences. The article concludes that once Supreme Court constitutional adjudication comes to be widely regarded as a mere reflection of Supreme Court political preferences, society may wish to reconsider the advisability of judicial review. From the perspective of democratic self-governance, such reconsideration may well be overdue.

Publication Citation

49 St. Louis U. L.J. 709-747 (2005)

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