Michael Zschokke (University of Pennsylvania Carey Law School - Student/Alumni/Adjunct) has posted The Pluralist Anticanon on SSRN. Here is the abstract:
Our constitutional practice is pluralist. It has also produced loathed decisions: the “anticanon” of American constitutional law. If we want a constitutional theory that both describes our practice and prescribes how judges should act to improve it, the anticanon can and should serve as an evaluative tool to measure the degree to which a theory reflects our practice, a practice that universally rejects anticanonical decisions.
Professor Philip Bobbitt proposes a pluralist account of American constitutional law that is both descriptive and prescriptive. But as I demonstrate through an analysis of the anticanon, the prescriptive dimension of Bobbitt’s pluralism inadequately constrains a system that I argue should accord its decisions with contemporary morality.
I describe Bobbittian pluralism’s defects, assess potential solutions, and propose my own solution: deference determination. When modalities of legitimate constitutional argument conflict, I argue that judges should defer to the constitutional judgments of other branches only when the potential harms of a decision can be better avoided by the groups that may be harmed by ruling for the government than the groups that may be harmed by ruling against the government. This approach, I will argue, better constrains judges to values created by our constitutional system.
