Making Constitutional Doctrine in a Realistic Age

Abstract

In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand reference to the term "fundamental" could come to describe a legal category defined by courts' own fears of illegitimacy except in an age self-conscious of the judiciary's institutional weaknesses. If the author is right about these examples, it may be that what was once said of modern painting's abstraction -- that whatever else it was about, it was "about painting" --i s true of modern doctrine's abstraction as well: that it is about doctrine and doctrine's struggle in an age self-conscious of the possibility of doctrinal failure.

Keywords: constitutional doctrine, clear law, Supreme Court, formalism, realism, jurisprudence, criminal law

JEL Classification: K00, K10, K14, K19