Pathetic Argument in Constitutional Law

Jamal Greene

Columbia University - Law School

September 15, 2013

Columbia Law Review, Vol. 113, 2013, Forthcoming
Columbia Public Law Research Paper No. 13-357

Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse — think of “Poor Joshua!” — but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discourses — text, history, structure, precedent, and consequences — that make constitutional law a distinctive form of politics. Normatively, appeals to emotion are most easily justified in opinions that seek to declare rather than apply law; in separate writings; when addressed to accepted subjects of constitutional argument rather than the ultimate outcome in the case; and when they arouse other-regarding rather than self-regarding emotions. A nuanced account of the proper place of pathetic argument in constitutional law is instrumental to understanding what it means to engage, and not to engage, in constitutional discourse.

Number of Pages in PDF File: 82

Keywords: pathos, ethos, logos, rhetoric, constitutional interpretation, modalities, originalism

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Date posted: September 16, 2013 ; Last revised: September 27, 2013

Suggested Citation

Greene, Jamal, Pathetic Argument in Constitutional Law (September 15, 2013). Columbia Law Review, Vol. 113, 2013, Forthcoming; Columbia Public Law Research Paper No. 13-357. Available at SSRN: https://ssrn.com/abstract=2326259 or http://dx.doi.org/10.2139/ssrn.2326259

Contact Information

Jamal Greene (Contact Author)
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States

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