Aversive Constitutionalism

Abstract

In this paper, I clarify the phenomenon that Kim Lane Scheppele characterised as 'aversive constitutionalism'. Primarily using (and reconceptualising) the material from Justin Collings’s recent book—'Scales of Memory: Constitutional Justice and Historical Evil', I argue that aversion is substantively an attitude, and stylistically a framing device in judgments.

As an attitude, it informs the affective, cognitive, and behavioural dimensions of an aversive judgment. Each of these dimensions are uncovered through key proxies discerned from the (admittedly limited) evidence provided in the texts of judgments.

As a literary framing device, the aversive narrative bookends the substantive engagement with the issue at hand. This style shifts the burden of justification, at least in part, from the judge herself to the personified polity, speaking through the framing device, to remind us of the aversive other (often the polity's own past self) that must be avoided.

Both as an attitude, and as a framing device, aversive constitutionalism seeks to serve two key functions: a legitimation function (in relation to the judgment and of the court) and an identitarian function (by defining the political self in opposition to the other).

Keywords: Aversive Constitutionalism, Aspirational Constitutionalism, Memory