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Constitutional Clichés

Randy E. Barnett

Georgetown University Law Center

March 14, 2012

Capital University Law Review, Vol. 36, 2008
Georgetown Public Law Research Paper No. 12-040

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.

Number of Pages in PDF File: 19

Keywords: Constitutional law, Constitutional interpretation, Judicial review, Originalism

JEL Classification: K00, K1, K3

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Date posted: March 15, 2012  

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

Contact Information

Randy E. Barnett (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)
HOME PAGE: http://www.randybarnett.com
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