Double-Consciousness in Constitutional Adjudication

Abstract

Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decisionmaking to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, and the consequentialist approach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think of as constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public thinks must be an ingredient in the judge's own view of the right answer.

Keywords: Constitutional Law