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

Texas Tech Law Review, Vol. 44, p. 1, 2011

NYU School of Law, Public Law Research Paper No. 12-30

59 Pages Posted: 25 May 2012 Last revised: 17 Jun 2012

Burt Neuborne

New York University School of Law

Date Written: 2011

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.

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

Suggested Citation

Neuborne, Burt, Serving the Syllogism Machine: Reflections on Whether Brandenburg is Now (or Ever Was) Good Law (2011). Texas Tech Law Review, Vol. 44, p. 1, 2011; NYU School of Law, Public Law Research Paper No. 12-30. Available at SSRN: https://ssrn.com/abstract=2066723

Burt Neuborne (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6172 (Phone)
212-995-4341 (Fax)

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