The Immediacy of Constitutional Rhetoric

Reading Judge Vinson’s ruling invalidating the Affordable Care Act, the Washington Post thinks that:

Vinson’s ruling reflects an explicit understanding among conservatives that legal fights are not so much won or lost on matters of legal precedent, but also on the field of public opinion, and that swaying the views of Justice Anthony Kennedy, whose opinion is ultimately the only one that matters, is most effectively done by portraying the mandate as a grave, un-American injustice — a yoke of oppression the American people are dying for the Supreme Court to lift.

The rhetoric of government overreach, the argument goes, is deliberately inflammatory, and designed to appeal to the emotional side of Justice Kennedy’s jurisprudence, such as it is. Maybe there’s something to that — Kennedy’s decisions are often deeply personal, and suffer for the same — but the author misses a point that practitioners will know. Constitutional arguments are always stated in terms of life-or-death threats to the republican order, with concepts, states, and systems anthropomorphized, and deemed to feel things they cannot.

I don’t mean to say that lawyers are all alarmists. Indeed, the hyperbole in which judges and advocates engage has a curious staid quality to it that comes from the matter-of-fact way in which the dangers are presented. We say, in earnest and as a matter of course, that taxpayer standing endangers the separation of powers and therefore the republic; judicial determination of a question “textually committed to the executive branch” would show “disrespect” to the office; states have “interests” in seeing their laws vindicated; failure to read Bankruptcy Code safe harbors broadly “threatens the integrity of the markets,” etc. As a matter of good advocacy, you should always present your case as part of a larger struggle, with context that demands an outcome.

Against this background, Judge Vinson’s slippery slope arguments are separately absurd, sure, but the manner in which they’re stated is anything but. It’s just the way the game is played. And before you say it, yes, different concerns control in the larger marketplace of ideas.

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