This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.
First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one another. The problem, however, is that proportionality’s proponents fail to see how it imposes a rights absolutism of its own. Proportionality reduces pluralism in rights adjudication to the degree of justified infringement of a right whose normative content is otherwise held to be unchanging. This trades constitutional hermeneutics for a far narrower, more impoverished view of the judicial role and the purpose of rights adjudication: a view of goal-oriented, technical policy refinement that offers citizens no resources to better comprehend the disagreements over public values that divide them. To demonstrate the stakes of this criticism, I draw on comparative constitutional scholarship concerning the limitations of European jurisprudence that employs proportionality analysis—and examine how such limitations align neatly with criticisms leveled at American categoricalism in various areas of US constitutional law.
Second, the Article offers an alternative. American constitutional theory requires a novel guiding light, which I term “narrative doctrinalism.” On this model, judicial review aims not merely to constrain democracy (categoricalism) or justify governance (proportionality) but instead to make possible a distinctive quality of democratic judgment. Set in a narrative frame, rights are neither trumps nor pragmatic interests to be balanced in proportion, but nodal commitments made in time. Their scope of application is not unlimited; but neither is their meaning timeless. Rights have pasts and futures that demand historically-grounded interpretation, which judges are uniquely well-positioned to provide. The Article develops narrative doctrinalism’s normative and methodological insights in detail. It then applies them to a salient case from a recent Supreme Court term: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case whose resolution continues to guide—for good or ill—how the Court disposes of analogous conflicts among rights regimes in other areas of law.
Neither Trumps nor Interests: Rights, Pluralism, and the Recovery of Constitutional Judgment,
70 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol70/iss3/5