Argument Selection in Constitutional Law: Choosing and Reconstructing Conceptual Systems

Southern California Review of Law and Social Justice, Vol. 18, p. 209, 2009

USC Law Legal Studies Paper No. 09-17

185 Pages Posted: 13 May 2009

Date Written: May 13, 2009


In some cases, it is clear that more than one constitutional argument will fairly lead to the same adjudicatory outcome. For the most part, courts choose exactly one of them, although in some cases they cumulate the converging arguments. When courts select just one, or at least fewer than all, on what basis do they, and should they, choose? Put tersely, what are the criteria for choosing among arguments that meet at the same outcome?

The virtue of formulating this question by imposing the same-outcome constraint is that it requires us to look closely at exactly what distinguishes one argument from another. In particular, we have to determine their comparative suitability for being chosen as the operational argument that drives or explains the adjudicatory outcome. What are the criteria of such quality in arguments - for a given court or court level, for a given jurisdiction, for a given kind of problem - and so on? How to select legal arguments generally is a fairly standard jurisprudential issue, but the approach here is to adjust our focus for greater clarity by removing an often dazzling difference among arguments their results. The reason for focusing on arguments in the first place is that, as I argue, the expression and operational meaning of a constitutional value is the argument that implements it - loosely, the argument is the value is the argument . . . .

Because this Article’s chief vehicle for analysis is constitutional adjudication, most of the discussion is tied to U.S. Supreme Court cases. After explaining what is meant by certain key concepts, such as “the same adjudicatory outcome” and “fairly/plausibly reaching” the same adjudicatory outcome, I suggest a set of criteria, set at a midlevel theoretical plane, for selecting among converging arguments in constitutional adjudication. These criteria include the presentation, ratification, reinforcement, and implementation of constitutional values in ways that match the hierarchic value system embedded in the Constitution; the anticipation of “revenge effects” of adopting a given argument structure that is transplanted to a neighboring constitutional region; and the rational obstruction of dangerous insights by masking certain conflicts among basic values.

Of course, the failure to select an argument structure in a given case, or even over a range of cases, is not necessarily a “rejection” of the values and frameworks embedded in the nonselected argument. The decisions not to adopt or even “list” the converging arguments rest on complex factors (including those affecting collegial courts), but here I address what I see as primary jurisprudential considerations - considerations that take account of our understandings (such as they are) of various aspects of human decision making.

This Article deals with several objections to pursuing its topic, and then presents a series of examples: Police Department of Chicago v. Mosley, where I ask why the Equal Protection Clause was needed to vindicate the equality values ruled to be embedded within the First Amendment “on its own,” compare First Amendment with equal protection approaches, and thus press the more general examination of the entanglement of equality and liberty; Rochin v. California, where Justice Frankfurter’s version of due process competed with Justice Black’s and Justice Douglas’s approach favoring use of the constitutional protection against self-incrimination; the case of the Francophobic Assassin, in which a political assassination is defended by the assassin as First Amendment expression; a collection of equal protection problems involving searches for suspects, race wars in prison, school segregation, medical measures, and race and affirmative action in education and labor; the Civil Rights Act of 1964 and its rival Commerce Clause and Fourteenth Amendment, § 5 rationales; and City of Renton v. Playtime Theatres, Inc., concerning the location of sex-oriented movie theatres.

In keeping with the idea that constitutional values are implemented in part by the presentation of arguments, I ask to what extent courts should be explicit in addressing how they choose among converging arguments, and contrast this question with asking whether the convergence of “higher theories” on a given argument similarly requires extended attention. For the former, I suggest that explicitness is what is presumptively required by the very existence of constitutional values that are meant to be implemented. For the latter, I suggest that ordinarily there is no need for devolving to higher theory or “foundations.”

Suggested Citation

Shapiro, Michael H., Argument Selection in Constitutional Law: Choosing and Reconstructing Conceptual Systems (May 13, 2009). Southern California Review of Law and Social Justice, Vol. 18, p. 209, 2009, USC Law Legal Studies Paper No. 09-17, Available at SSRN:

Michael H. Shapiro (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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