Tuesday, February 22, 2011

The Search for Authority

Gerard N. Magliocca

Last month I read an excellent paper by Jamal Greene on the constitutional anti-canon. (The draft is not on SSRN but soon will be.) One interesting feature of Professor Greene's argument is that there was no anti-canon until the 1960s. Prior to that time, there were cases that people saw as wrong, but none were considered so wrong that they should be upheld as precedent of what not to do. Today, of course, some cases are used that way (e.g., Dred Scott, Plessy, Lochner, and Korematsu) by judges and scholars who want to buttress their reasoning ("My theory could never lead to one of those awful results") or attack the reasoning of others ("Your logic would lead to those awful results.")

Why did this methodological change occurred in the 1960s? With respect to race, the link between the Civil Rights Movement and the banishment of the leading cases on slavery and segregation is obvious. The connection to the liberty of contract is not as clear, but presumably the Court's development of the right of privacy (starting in Griswold) required them to find a way to sharply distinguish between those unenumerated rights and the economic liberty cases decided between the defeat of William Jennings Bryan and the reelection of Franklin D. Roosevelt.

More broadly, the development of the anti-canon illustrates on ongoing problem in constitutional law. As the gap between the text and the doctrine gets wider over time, new rhetorical devices are required to synthesize those sources. My hunch is that the next stage of this process will involve the increasing use of historical counterfactuals, which is one reason why I am focusing on that tool in my own work. Hypotheticals were widely used in Roman law as authorities that were tantamount to actual decisions, and more research into that intellectual tradition is warranted.

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