Wednesday, June 26, 2024

The Ugly Rhetoric of Dobbs, or, Why Jack Balkin is History

Andrew Koppelman

is the title of a paper I just posted on SSRN.  Here is the abstract:

This essay, part of a symposium on Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation, has three claims. First, I want to emphasize an underappreciated ethical virtue elicited by the practice of rhetoric: it demands that the speaker get out of his own head and focus on his audience and what they care about. The rhetorical deployment of historical narrative in political discourse can help to forge a collective identity in which we all can recognize ourselves, and so make the polity more inclusive. Second, if this aspect of rhetoric is understood, we will notice when it is offered in a way that marginalizes some citizens by excluding them from its audience and implying that they don’t matter and that their concerns are beneath notice. Justice Alito’s opinion for the Court in Dobbs v. Jackson Women’s Health Organization is an example, the nastiness of which is best appreciated when one considers it as a rhetorical exercise. And third, the work of exposing these abuses supports one of Balkin’s central methodological points, which is that liberals and progressives should not denounce originalism, but rather should master its techniques and learn to deploy its rhetorical power.

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