Brannon P. Denning (Samford University - Cumberland School of Law) Ipse Dixits, Bootstraps, and Constitutional Doctrine (Baylor Law Review, Vol. 74, No. 3, 2022) on SSRN. Here is the abstract:
Some especially contentious areas of constitutional doctrine—cases involving obscenity and the Court’s autonomy cases like Roe and Casey—have something in common that has gone unnoticed by scholars: in crucial cases, the Court anchors its decision on a particular type of ipse dixit pronouncement that “if X means anything, it means Y.” X might be an area of doctrine, textual provision, or constitutional principle. Y is something X is deemed to encompass, permit, or prohibit—indeed it is said to be an indispensable part of X.
This Essay argues that this is an especially noxious form of the ipse dixit that should be lumped among “anti-modal” arguments that—however frequently they are deployed outside the courts—have no business appearing in judicial opinions, especially those issued by the Supreme Court. Subsequently, these initial decisions employing what I term “if-then ipse dixits” are often bootstrapped and the principle announced in the initial case is expanded across a broader range creating entirely new areas of constitutional doctrine.
Part I of this Essay provides examples of decisions in which an if-then ipse dixit is the basis for the outcome in the decision, as well as examples in which those initial decisions later served as the precedential basis for a subsequent expansion of the initial case’s constitutional principle. Part II considers Dan Coenen’s arguments that ipse dixit declarations generally, including the if-then ipse dixits I describe, are appropriate vehicles for what he terms “quiet revolution rulings” in constitutional law. Part III then rejects Coenen’s defense and elaborates my claim that these pronouncements are legally illegitimate. Specifically, I argue that these particular ipse dixit statements are legally illegitimate because they are unreasoned, arbitrary, disingenuous, and often simply false.
