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Unpublished Paper
Reasoning about the Irrational: The Roberts Court and the Future of Constitutional Law
ExpressO (2011)
  • H. Jefferson Powell, George Washington University

Reasoning about the irrational: The Roberts Court and the future of constitutional law [Abstract] Commentary on the future direction of the Roberts Court generally falls along political lines that correlate with the commentators’ views on the political desirability of the Court’s recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the Heller second amendment decision, Justice Scalia suggested a fundamental revision of the Court’s assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law: Scalia would eliminate the normative aspects of the Court’s inquiry into rationality that have been part of traditional analysis, and reject altogether the generally-accepted view that rationality review is a deliberate underenforcement of constitutional norms. The links between footnote 27 and Chief Justice Roberts’s opinion in Engquist v. Oregon Dept. of Agriculture, and between the footnote and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that the footnote is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant it will change in profound ways the Court’s treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law.

  • Robert Court,
  • rational basis,
  • constitutional doctrine,
  • Scalia
Publication Date
January 16, 2011
Citation Information
H. Jefferson Powell. "Reasoning about the Irrational: The Roberts Court and the Future of Constitutional Law" ExpressO (2011)
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