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[86WashLRev0217] Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law

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dc.contributor.author Powell, H. Jefferson
dc.date.accessioned 2011-05-27T19:25:08Z
dc.date.available 2011-05-27T19:25:08Z
dc.date.issued 2011-05
dc.identifier.citation 86 Wash. L. Rev. 217 (2011) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/1021
dc.description.abstract Author: Lyle T. Alverson Professor of Law, The George Washington University Law School. Abstract: Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators’ political views on the desirability of the Court’s recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court’s assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court’s inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts’s opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court’s treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law. en_US
dc.language.iso en_US en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law en_US
dc.subject Article en_US
dc.title [86WashLRev0217] Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law en_US
dc.type Article en_US
dc.rights.holder Copyright 2011 by Washington Law Review Association. en_US


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