Michigan Law Review
Robert F. Nagel, The Formulaic Constitution, 84 Mich. L. Rev. 165 (1985), available at https://scholar.law.colorado.edu/faculty-articles/1030.
The Supreme Court's constitutional jurisprudence of late has been filled with formulae - tests that must be met, hurdles that must be overcome. This multi-pronged analytical technique is, according to Professor Nagel, distancing the Justices from both their audience, the American public, and their text, the Constitution. In an effort to retain the authority of that text, the Court is instead displacing it; in an effort to persuade that audience, the Court is instead excluding it. Furthermore, the Court's attempt to constrain judges has actually created an irresponsible judicial freedom, while its attempt to locate a middle ground between the fact-responsiveness of realism and the abstractness of conceptualism has in reality led to a regulatory, abstract, and adversarial perspective. The way the Court talks affects the society in which it wields power. If constitutional law is to educate and motivate the members of that society, it must, Professor Nagel submits, become more collaborative and less complete.
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