Neil Siegel (Duke University - School of Law) has posted Prudentialism in McDonald v. City of Chicago (Duke Journal of Constitutional Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:
At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court’s preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court’s effectiveness, but also what response is best for the constitutional system as a whole when the Court’s legitimacy is not at stake.
The Court’s recent decision in McDonald v. City of Chicago illustrates the practice of system-centered prudentialism. Judging from the concerns raised by several Justices at oral argument, especially Justice Scalia, members of the McDonald plurality appeared to reason prudentially in deciding to use Section One of the Fourteenth Amendment’s Due Process Clause — and not its Privileges or Immunities Clause — to apply the Second Amendment to state and local governments. But the Court reasoned prudentially in substantial part because it was troubled about the consequences for the American constitutional system of opening up a Pandora’s Box of new assertions of unenumerated rights, not because its own legitimacy was threatened.
McDonald illustrates the importance of understanding why judges may decline to fully acknowledge their own practice of prudentialism. McDonald also illustrates the need for constitutional theory to accommodate the practice.
And from the paper:
System-centered prudentialism, by contrast, is no mere pragmatic exception to principle that is justifiable or excusable on grounds of institutional survival. Such prudentialism can be defended only with a persuasive account of why it is part of the judicial role to exercise discretion in ways that promote the stability and health of the American constitutional order.55 From a system-centered prudential perspective, the Court is, in part, the head of a branch of government, and an important part of what branches of government do is govern. From this vantage point, there is much to admire in the McDonald plurality’s willingness to consider the possible consequences of clause shifting in incorporating the Second Amendment, even if reasonable minds can differ about the wisdom of the prudential judgment that the plurality ultimately made. The key normative question is whether and when such a governance function for the Court is compatible with its legal obligation to uphold the rule of law.
The key question indeed! Interesting and highly recommended.