| The Anti-Antidiscrimination Agenda |
| Jed Rubenfeld [View as PDF] |
|
111 Yale L.J. 1141 (2002) For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case may be the proverbial thirteenth chime of the clock, not only wrong in itself, but calling into question what came before. But I have avoided all discussion of that case here, forgoing any advantage such a discussion might have given to the argument. Bush v. Gore is a singular point in a number of respects, and its shadow has already dissipated to a considerable extent. The aim of this Essay was instead to look at a set of "ordinary" cases that, when viewed in their own doctrinal categories, look perfectly plausible, but when viewed as a whole, juxtaposed across doctrines, begin to look suspicious. If this suspicion proves well-founded, it will mean that the current Court's constitutional case law has to be understood less in terms of its ostensible doctrinal reasoning, and more in terms of an underlying agenda, founded on a deeply held but as yet poorly theorized sense that antidiscrimination law in this country has taken a very wrong turn. If all this is true, the right response might not be to jettison the Court's case law, but to jettison the whole enterprise of taking constitutional doctrine seriously. After all, constitutional law is always driven by one agenda or another. Perhaps the sun set long ago on law's empire; perhaps now is a propitious time finally to put an end to the nonsense about the foundations that "We the People" laid down a century or two ago. Perhaps instead the only kind of question really worth asking is whether the agenda pursued by a particular Court is, for example, legitimated by recent popular elections, or whether it makes the Constitution the best it can be. |