Serving the Syllogism Machine: Reflections on Whether Brandenburg is Now (or Ever Was) Good Law

Abstract:     
A discussion of the source of the Supreme Court’s power to enunciate fine grained constitutional doctrine like Brandenburg v. Ohio that purports to set the precise level of risk that society must assume in connection with efforts to regulate speech. The article explores the factual and political context of Marbury v. Madison and concludes that significant doubt exists whether Marbury’s commission was, in fact, signed and sealed before president Adams left office. The article continues by characterizing Chief Justice Marshall’s familiar defense of the power of judicial review as the creation of a syllogism machine, with the major premise (the rule of law) and the minor premise (the underlying facts) imposed on the court by outside, democratically legitimate forces. After critiquing the model, and questioning whether resort to literalism or originalism can save the model, the article urges that more attention be given to the minor premise in Marshall’s model, arguing that the minor premise is really a device for deflecting factual error about the need for and consequences of regulation in derogation of constitutional values. The article closes by analyzing Brown v. Board of Education, Roe v. Wade, and Brandenburg v. Ohio as exercises in error deflection.

Number of Pages in PDF File: 59

Keywords: Supreme Court, judicial review, rule of law, syllogism, orginalism

Accepted Paper Series