Counter-Conversationalism and the Sense of Difficulty
Northwestern University Law School
Northwestern University Law Review
Almost forty years after Alexander Bickel coined the phrase, constitutional scholarship is still in thrall to the notion of a "counter-majoritarian difficutly" that the courts are said to present when they engage in judicial review. At a minimum, the "difficulty" is badly named. The rest of the system is no more to be credited with majoritarian credentials than are the courts. But there is also a nagging problem of what is meant by "difficulty," and in particular whether compensation in the rest of the system can calm whatever difficulty there might be thought to be for judicial review.
The courts' constrained conversationalism is a better candidate as the cause of the sense of difficulty. By focusing their conversational energies on the parties, the courts largely ignore others who are affected by the decisions they make. This is in contrast to legislative and executive officials who, due to the incentives created by a competitive electoral system, reach out conversationally. A conversational perspective can clear up anomalies in the literature that Bickel spawned. Neither the uninterpreted Constitution nor statutory decisions are said to create a "difficulty" but there are conversational explanations for the differences. A conversational perspective can also explain why the robust contemporary practice of dissenting and concurring opinions raises no controversy. And it helps us see that originalism and other proposals for constitutional interpretation are not likely to still the sense of difficulty.
Once judicial review is placed in conversational perspective, it becomes clear that the only relief from the sense of difficulty likely lies in retreat from treatment of the Constitution as law. For the courts' counter-conversationalism is part and parcel of their ordinary way of adjudicating under law. To a certain extent this has already taken place. No doubt in recognition of the important stake that non-parties have in its decisions, for instance, the United States Supreme Court is now much more receptive to amicus submissions than it was traditionally. Further retreat might take a variety of forms, but any wholesale abandonment of treatment of the Constitution as law would be likely to create a sense of difficulty anew.
JEL Classification: K19, K41
Date posted: November 7, 2000