The Rhetoric of Constitutional Absolutism
96 Pages Posted: 14 May 2014 Last revised: 11 Mar 2015
Date Written: May 13, 2014
Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. It ultimately argues that the costs outweigh the benefits and proposes a more nuanced, conciliatory constitutional discourse that could acknowledge competing arguments without compromising legal clarity or the rule of law.
Keywords: constitutional law, judicial decision making, Supreme Court, rhetoric, indeterminacy, popular constitutionalism, cultural cognition, rule of law, aporia
JEL Classification: K19, K10
Suggested Citation: Suggested Citation