Document Type



California Law Review




The apex of American legal thought is embodied in two types of writings: the federal appellate opinion and the law review article. In this Article, the author criticizes the whole enterprise of doctrinal constitutional law scholarship, using a recent U.S. Supreme Court case and a Harvard Law Review article as quintessential examples of the dominant genre. In a rhetorical tour de force, the author argues that most of modern constitutional scholarship is really advocacy in the guise of scholarship. Such an approach to legal scholarship may have some merit as a strategic move towards a political end; however, it has little value as scholarship, the goal of which is to seek truth. As a formerly monolithic legal system becomes more culturally heterogeneous, judges and academics no longer share as many assumptions about social truth. Hence, they have an increasing need to mask political judgments in order to avoid the contentious political battles that this increased diversity produces. Legal academia's present obsession with defending constitutional law as something more than an ad hoc rationalization of what are essentially political choices suggests that the present genre of constitutional scholarship may well have outlived its usefulness as a discursive form.


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