The Rhetoric of Constitutional Absolutism

96 Pages Posted: 14 May 2014 Last revised: 11 Mar 2015

See all articles by Eric Berger

Eric Berger

University of Nebraska at Lincoln - College of Law

Date Written: May 13, 2014

Abstract

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

Berger, Eric, The Rhetoric of Constitutional Absolutism (May 13, 2014). William & Mary Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2436503

Eric Berger (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States
402 472-1251 (Phone)

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