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Neither Trumps nor Interests: Rights, Pluralism, and the Recovery of Constitutional Judgment (Introduction)

What warrant do judges have to resolve deep conflicts over values in a pluralistic political order? In the American constitutional tradition, the answer has turned to doctrinal categories, which draw strength from a claim about expertise: the judicial (and lawyerly) skill to interpret bodies of case law. But the categorical approach, as Professor Jamal Greene has powerfully argued in a recent article, also risks reflexively embracing the absolute nature of constitutional rights and thus distorting, or simply ignoring, salient values. Proportionality, favored by Greene to replace categoricalism, offers a second answer. But proportionality gives rise to the inverse dynamic. While it can authentically claim to keep better track of salient values in the present, proportionality invites the objection that judges have neither the democratic pedigree nor relative competence to perform the needed accounting of costs and benefits.

In conceiving rights as interests and constitutional adjudication as the pragmatic balancing of those interests at singular points in time, proportionality strains the legitimacy of judicial review. And it does so, in fact, precisely by enforcing a rights-absolutism of its own. The underlying substantive meaning of rights is projected as a constant. The pluralism rights signify is here reduced merely to the variable extents to which this content can be limited or infringed in any individual case of conflict. Proportionality thus risks losing a crucial achievement of American constitutionalism: the idea that paradigmatic judicial interpretations of rights trace the self-authorship of a democratic polity over time.

American constitutional theory requires, I argue, a third guiding light, which I term ‘narrative doctrinalism’. On this model—informed by the constitutional thought of Robert Cover and Paul Kahn—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 Dworkinian trumps nor pragmatic interests to be balanced in proportion, but nodal points in time. Their scope of application is not unlimited; but neither is their meaning timeless. They have pasts and futures that demand historically-grounded interpretation in each case.

The narrative interpretive method suggests the following: for constitutional judgment to retain the plural and limited understanding of rights, a court must articulate a critical interpretive stance that applies both horizontally to the facts presented by the parties and vertically to the landscape of public law and the position of the state. Each of these dimensions, further, is set within a diachronic frame of historical and imagined (future) development: how broader social and political confrontations emplot the particular dispute; and how doctrine has, meanwhile, developed around them and might yet develop afterwards still. 

The article applies narrative doctrinalism’s normative and methodological insights in detail to two salient cases from the Supreme Court’s prior term: Masterpiece Cakeshop v. Colorado Civil Rights Commission and Carpenter v. United States.