Constitutional Fundamentalism

Abstract

The occasions on which a judge or legal scholar has peered into the depths of the Constitution and found, to her surprise, that the Constitution requires the opposite of her ideological preferences, are extremely rare. Yet judges and scholars continue to present their conclusions as the product of ideologically neutral reasoning, while often criticizing the ideological bias in the reasoning of their opponents. A Wittgensteinian perspective on the nature of legal discourse can shed light on this puzzlingly persistent state of affairs. Legal discourse, including constitutional argument, is partly defined by the blending of descriptive reasoning about what the law is with prescriptive reasoning about what the law ought to be. To reach a legal conclusion based on a blend of descriptive and prescriptive reasoning, and to phrase this conclusion as purely descriptive, as legal actors habitually do, is not to violate the rules of legal discourse, but to abide by them. Taking this conception of legal discourse as a starting point, the Article extends Sanford Levinson’s analogy between U.S. constitutionalism and religious faith. Just as we can distinguish at least three attitudes toward a religious belief—fundamentalism, atheism, and non-fundamentalist faith—so we can distinguish at least three analogous approaches to legal and constitutional discourse. Jack Balkin’s Redemption illustrates the often neglected possibility of a constitutional faith without fundamentalism. [An earlier draft of this article appeared on SSRN under the title Constitutional Fundamentalism.]