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eBook details

• Title: Double-Consciousness in Constitutional Adjudication
• Author : Review of Constitutional Studies
• Release Date : January 01, 2008
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 103 KB

Description

I. INTRODUCTION In a recent essay, Cass Sunstein offers useful terms for distinguishing between two reasons why judges might hesitate before ruling that constitutional law requires a result that the public strongly opposes. (1) One reason is epistemic and the other consequentialist. The epistemic reason, boiled down, is that if a large number of people believe a given view to be correct, one should think hard before concluding that they are mistaken. The consequentialist reason, also boiled down, is that even if a judicial ruling is legally correct, it could still be unpopular enough to provoke a public backlash that would damage both the specific cause served by the court's ruling and the general climate of obedience to legal institutions. (2) In this essay, I suggest that there is also a third reason why some strongly held public views should figure in constitutional adjudication. We can call this third alternative the constitutive reason.

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