Academic journal article William and Mary Law Review

The Rhetoric of Constitutional Absolutism

Academic journal article William and Mary Law Review

The Rhetoric of Constitutional Absolutism

Article excerpt


Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices' rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric's implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a more nuanced, conciliatory constitutional discourse that would acknowledge competing arguments without compromising legal clarity or the rule of law.


   A. Absolutist Constitutional Provisions
   B. Judicial Absolutism
      1. Heller, History, and a New Individual Right
      2. Rosenberger and Conflicting Constitutional
      3. Citizens United and Overturning Precedent
      4. Graham, National Consensus, and
        the Countermajoritarian Problem
      5. Shelby County and Supreme Court Finding of
         Legislative Facts
   A. Strategic Explanations
      1. Absolutism as Demosprudence
      2. Absolutism as Persuasion of Colleagues
      3. Absolutism as Rule of Law
      4. Absolutism as Formalism
   B. Institutional Explanations
      1. The Politics of the Judicial System
      2. The Court's Internal Culture
      3. Dispute Resolution and the Institutional Role of
         Lawyers' Arguments
   C. Psychological Explanations
      1. Confirmation Bias and Cultural Cognition
      2. Self-Certainty and Overconfidence
      3. The Psychology of the Opinion-Writing Process
      4. The Justice as Advocate
   A. Costs
      1. The Politics of Cultural Disdain
      2. Judicial Legitimacy
      3. Constitutional Misconceptions
      4. Misplaced Piety
   B. Benefits
    1. Legal Stability and the Rule of Law
    2. Civic Engagement
 C. Other Implications and Tensions
    1. The Tension Between Judicial Supremacy and
       Popular Constitutionalism
    2. The Tension Between Absolutism and Minimalism
    3. The Tension Between Absolutism and Judicial
       Findings of Indeterminacy
    4. The Paradoxical Overabundance and
      Dearth of Candor

But certainty generally is illusion, and repose is not the destiny of man.

--Oliver Wendell Holmes, Jr. (1)

The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.

--Learned Hand (2)

The majority's reasoning is faulty. It proves too much. It sets the law upon a slippery slope. It is too clever by half. It is unprecedented. It cannot withstand scrutiny. It will lead to absurd results.... It legislates from the bench. It cannot be taken literally. It seizes upon hard facts to make bad law. It is wrong.

--Kyle Graham (3)


Pick up many a Supreme Court opinion about constitutional law, and you are likely to think that constitutional answers come easy. (4) Justices confidently announce their decisions and bolster their holdings with indisputable evidence. (5) The question might be complex, but there is rarely much doubt as to the correctness of the Court's conclusion--at least until you turn the page and start reading the dissent. (6)

In fact, notwithstanding some Justices' rhetorical confidence, constitutional law rarely yields certain answers. …

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