Disciplining Judicial Interpretation of Fundamental Rights: First Amendment Decadence in Southworth and Boy Scouts of America, and European Alternatives
37 Pages Posted: 1 Dec 2004
American constitutional jurisprudence has entered a period of decadence. The characteristics of this decadence is much in evidence in the constitutional jurisprudence of the American Supreme Court: judicial arbitrariness, the use of interpretive doctrine as an end rather than a means, disregard of existing interpretive doctrine and hyper-distinctions of fact, doctrine as a smokescreen for personal preference, and an inclination to permit the juridification of everyday life. Indeed, these characteristics of decadence are made worse by a bloated and ill-defined catalogue of interpretive doctrines that veils all distortion of constitutional principle in the service of personal politics. Here is a jurisprudence in decline, increasingly noted more for arbitrariness than principle. In this context, it is worth inquiring whether there might be a suggestion for improvement in the juristic traditions of European or supra-national constitutional systems. This article examines the latest example of the modern phenomenon of jurisprudential decline through an analysis of two First Amendment cases decided during the American Supreme Court's 1999-2000 Term. It then looks to the French and German systems of constitutional review, and the jurisprudence of the European Court of Human Rights, to determine whether other systems provide translatable lessons for a more effective and democratically based supervision of the interpretive function of the American Supreme Court. It suggests that European traditions of hierarchies of fundamental constitutional values provide at least a basis for the policing of judicial interpretation. In the absence of regularization and restraint, the American system of constitutional jurisprudence (like any other system relying on judicial interpretation) will collapse of its own weight. Equally likely is the possibility that such a system will be abandoned because, having become so engorged in detail, point and counterpoint, thrust and counter-thrust, rule and exception, it will prove useless to all but the theoretician and the pedant.
JEL Classification: K10, K19, K39
Suggested Citation: Suggested Citation