Berger on The Rhetoric of Constitutional Absolutism

Eric Berger of the University of Nebraska has a new article up on ssrn, "The Rhetoric of Constitutional Absolutism."  He's interested in mostly contemporary constitutional opinions that phrase their results in absolutist terms (or what we might think of in terms that suggest that no other result is possible/appropriate).  I guess I'm not terribly surprised by this phenomenon.  People of action (judges) are likely to think that they're right and to phrase their decisions in terms that justify their decision and make other decisions/paths look implausible or incorrect.  What I like about Berger's article is that he goes through a number of the rationales for such appearing certainty. Cribbing now from Berger's 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.

As I say, this is mostly about contemporary constitutional law, but the questions Berger raises certainly resonate with our history.  I am naturally drawn to see how this might apply to rhetoric about law, property rights, and constitutionalism  in the years leading into Civil War.  Judges and lawyers in the South spoke and wrote in increasingly hyperbolic terms about slavery and property and the threats to the constitutional order.   Southern lawyers, politicians, judges, and academics increasingly told each other that their rights to property in humans was found in the Constitution, in common and Constititutional law, and in political theory -- such beliefs worked their way into formal constitutional law and fed back into popular constitutional thought.  Even at moderate places like the University of North Carolina, there was a growing dissatifaction with the Union, a growing belief that the Constitution permitted states to exit, and a growing belief in the Constitution's support for slavery and opposition to abolitionists.  Judges -- including one member of the majority in Dred Scott -- extended their arguments off the pages of the U.S. and state reports to college literary societies and to literary journals.  The rhetoric was absolutist indeed.

The UDC monument at Appomattox mentions the fight for "principles believed fundamental to government."  I've previously speculated -- perhaps incorrectly -- about the meaning of the past tense.   That people in the 1920s were looking back on the era of the Civil War and saying that their ancestors had believed in principles like states rights to protect slavery -- but that we now know better.  I use the monument to illustrate that we should probably expect people who believe in a doctrine -- no matter how inhumane and wrong other people know it to be -- to believe fully in that doctrine, right up to the time it collapses.  Maybe they should know better, but don't bet on it.

Comments

[Thinklikea1l.wordpress.com]

Textual interpretation of the Constitution leads to conservative outcomes. The Founders were more conservative than either political party is today, so it is virtually impossible to adapt textualism to progressive ends. The method itself therefore must be discredited, but its widespread necessitates that efforts to do so not appear nakedly political.

Thus, a sixty-five page article bemoaning Heller, Rosenberger, Citizens United, and Shelby County is cast as a warning against "Constitutional absolutism."