God and Man in the Yale Dormitories
29 Pages Posted: 8 Feb 2013
Date Written: 1998
Relatively early in American constitutional history, Alexis de Tocqueville observed that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question."' The conventional view counts this fact as a vice of American political life, because relegating social questions to the courts purportedly saps the vitality of popular deliberation. One might challenge the conventional wisdom by noting something like the converse of Tocqueville's observation. Legal questions, especially constitutional ones, tend to catalyze and then shape public debate about social questions. For example, the Supreme Court's recent consideration of the constitutionality of laws prohibiting physician-assisted suicide moved a simmering public discussion to the front burner of American politics. In favor of this counterview, Ronald Dworkin contends that American courts, as forums of principle, render debate about divisive social issues deeper than it is in other Western democracies.
Dworkin is surely right when he notes that constitutionalization rarely ends public debate, even or perhaps especially when basic rights are concerned. Yet the relation between legal/constitutional debate and debate about broader social questions is more complicated than either the conventional wisdom or Dworkin's counterview indicates. For even if constitutionalization sometimes invigorates public debate, it does so using the categories of constitutional law, which are not appropriate in all settings.
Keywords: Constitutional, social issues, legal debate
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