Thin constitutionalism, thick public discourse

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1 Response

  1. A.J. Sutter says:

    May I ask a naïve question: Is it really within the Supreme Court’s authority to be basing decisions on such principles as one action “demeans” some group, or some other action is wrong because it’s a “public insult”? I had thought that they were supposed to be basing their decisions on laws and the Constitution. I don’t necessarily disagree with the view that the various actions you mention are demeaning or insulting, and I agree that it’s not desirable to constitutionalize every issue, but do we really want courts to have the liberty to be basing their decisions on such free-floating moral judgments? What happens when, say, they start making it more difficult for women to work because work “demeans” their sacred role as mothers?

    Assuming that normative jurisprudence is a Good Thing (and I confess I haven’t yet had a chance to read more than the first chapter or two of Robin’s book), I wonder if it’s feasible to distinguish (i) having it influence law school teaching, and (ii) basing proposals for laws on the kinds of reasons that n.j. promotes, from (iii) having naked normative moral judgments be the basis of judge-made precedent. I can’t say (iii) strikes me as a great idea. Or are you proposing that these judgments be anchored to interpretation of laws in some way that I didn’t pick up from your post? Maybe I’ve misunderstood in a way that’s easy to resolve.