19 Pages Posted: 15 Mar 2012
Date Written: March 14, 2012
Popular discourse on constitutional interpretation and judicial review tend to employ a series of catch phrases that have become constitutional clichés. Phrases such as “judicial activism,” “judicial restraint,” “strict construction,” “not legislating from the bench,” “Framers’ intent,” the “dead hand of the past,” and “stare decisis” so dominate public commentary on the Constitution and the courts that quite often that is all one hears. Unfortunately, even law professors are not immune. There was a time when each of these catch phrases meant something and, although each could mean something again, in current debates all have become trite and largely devoid of substance. In short, they have become clichés.
In this essay, the author explains why these clichés should be abandoned even in casual conversation. Somewhat surprisingly, it turns out that several of them are connected by a common thread: the apparent desire by commentators to avoid substantive constitutional argument in favor of a process-based analysis that can be easily leveled in the absence of any expertise on the issues raised by a particular case. In other words, at least some of the appeal of these constitutional clichés is that they enable commentators to criticize the Court or particular decisions without actually having to know much about the Constitution itself.
Keywords: Constitutional law, Constitutional interpretation, Judicial review, Originalism
JEL Classification: K00, K1, K3
Suggested Citation: Suggested Citation
Barnett, Randy E., Constitutional Clichés (March 14, 2012). Capital University Law Review, Vol. 36, 2008; Georgetown Public Law Research Paper No. 12-040. Available at SSRN: https://ssrn.com/abstract=2021980