The Jurisprudence of Denigration

31 Pages Posted: 12 Mar 2014 Last revised: 14 Mar 2014

Date Written: March 10, 2014

Abstract

In his opinion for the Court in United States v. Windsor, Justice Anthony Kennedy asserted that section 3 of the Defense of Marriage Act was unconstitutional because it was enacted from “a bare congressional desire to harm a politically unpopular group,” or from a “purpose...to demean,” “to injure,” and “to disparage.” Kennedy and the Court thereby in essence accused Congress – and, by implication, millions of Americans – of acting from pure malevolence.

Why might distinguished Justices put their names to such an extraordinary accusation? This article explores deficiencies, first, in contemporary constitutional discourse and, second, in contemporary moral discourse. These deficiencies have resulted in a situation in which, in some contexts, the only kind of admissible and potentially persuasive argument is one that attacks the character or motives of one’s opponents. Windsor is a recent and egregious instance of this discursive pattern, or of what we may call the discourse of denigration.

Keywords: constitutional law, marriage, law and philosophy, public discourse

JEL Classification: K10

Suggested Citation

Smith, Steven Douglas, The Jurisprudence of Denigration (March 10, 2014). UC Davis Law Review, Forthcoming; San Diego Legal Studies Paper No. 14-143. Available at SSRN: https://ssrn.com/abstract=2407244

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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