This course will explore the nature of American constitutional law as an argumentative practice. Lawyers and judges notoriously argue about how particular cases should be resolved—about whether there should be protected rights to abortion, to gay marriage, and to possession of certain kinds of weapons for self-defense, for example. In this course, we will look closely at contemporary constitutional doctrine involving these and other issues. In doing so, however, we will focus on the practices of argument and persuasion from which current law has emerged and within which constitutional change can and does occur. (Fifty years ago, the Supreme Court had not recognized abortion rights or rights to gay marriage, nor had it recognized a right to possess weapons for self-defense.)
Three themes will dominate. The first is the partial distinctiveness of legal from moral and political argument. To argue like a lawyer or a judge is to respect certain disciplines.
A second theme involves constitutional change. Some arguments that count as good arguments today would have been rejected as “off the wall” as recently as a few decades ago, and vice versa. More often than not, politics drives constitutional change, either directly or indirectly. To make sense of constitutional change, one must grasp how the barriers that divide creditable legal arguments from straightforwardly moral and political arguments are real and important, but also permeable.
A third theme highlights the relationship between legal norms and moral norms within the practice of adjudication itself.