Nino's Paradox

JB

I have posted a draft of my latest article, Nino's Paradox, on SSRN. Here is the abstract:

This essay explains how lawyers and judges manipulate the distinction between changes in facts and changes in values when they interpret the Constitution. This rhetorical manipulation allows them to portray changes in social values merely as changes in facts.

Manipulating the distinction between facts and values serves several important ideological functions in American constitutional law. First, it helps make changes in constitutional values between the past and the present disappear and helps preserve the belief that we still apply the Framers’ values today. Second, it downplays or disguises the fact that changes in constitutional interpretation are often the result of social conflicts and struggles over social values outside of the Article V amendment process. Third, it helps preserve the appearance (if not the reality) of judicial neutrality in current constitutional conflicts, because judges are required to apply the same law to changing facts. Fourth, it helps preserve the appearance (if not the reality) that in the face of constant social and technological change judges can just apply the law without making any new and controversial value choices.

Because technology, social practices, and social values co-evolve, it is often not possible to maintain a firm distinction between changes in facts and changes in values. Lawyers and judges often describe constitutional purposes and rights at different levels of generality to disguise this fact and to make the Constitution better cohere with contemporary values—and with their own values. In addition, applying the constitutional text in new technological circumstances may upset the balance of competing normative assumptions that produced the constitutional text in the first place. As a result, technological change often alters the balance of constitutional values the law protects and even the nature of the rights and powers the Constitution guarantees. In sum, because technology, social practices, and social values co-evolve, we are all living constitutionalists now, whether we are willing to recognize it or not.