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Gregory Brazeal: Constitutional Fundamentalism
Michael Ramsey

Gregory Brazeal (U.S. Army JAG Corps) has posted Constitutional Fundamentalism on SSRN. Here is the abstract: 

There is widespread agreement that judges’ and legal scholars’ interpretations of the Constitution should be based on what the Constitution means, not what the interpreter believes it should mean. There is equally widespread agreement that this principle is more honored in the breach than the observance. 

This Article offers a novel account of the pervasive role of ideological bias in constitutional adjudication and legal scholarship based on a reconception of the nature of legal discourse. The argument begins by drawing an analogy between the way we talk about religious belief and the way we talk about legal discourse. As Wittgenstein observed, it is easy to be misled by the appearance of expressions of religious belief into concluding that religious belief must be seen as no different from scientific belief. Expressions of faith and statements of scientific fact appear structurally identical. In fact, however, attention to the context surrounding statements of religious belief suggests that they may be seen as belonging to a different social practice governed by different norms from those governing scientific belief.

Something similar can be said of legal discourse, including interpretations of the Constitution. Statements of the law made by legal actors are usually phrased as purely descriptive statements of what the law is. Viewed in isolation, these statements appear to be no different from statements of scientific fact. Attention to the context surrounding legal actors’ statements of the law suggests, however, that legal discourse may be seen as governed by different norms from those governing purely descriptive scholarly or scientific analysis. Legal discourse, including constitutional argument, can be seen as partly defined by the blending of descriptive (“positive”) reasoning about what the law is with prescriptive (“normative”) 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.

Moreover, 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 attitudes toward a legal claim, including a legal interpretation of the Constitution’s meaning. Fundamentalism is the most frequent stance among constitutional theorists. Jack Balkin’s Constitutional Redemption illustrates the often neglected possibility of a non-fundamentalist constitutional faith.