I am on the road this week speaking about "Constitutional Cliches: Does Trite Make Right?" at Federalist Society sponsored talks. On Monday at noon, I will be at the University of Kentucky, and in the afternoon am speaking at the University of Cincinnati at 4:30pm.
(I think the talk is at 4:30pm 3:00pm but am not sure.) On Tuesday at noon, I will speak at Northwestern University School of Law in Chicago. On Thursday, I will be speaking at 12:30pm noon at Tulane and in the afternoon at Loyola of New Orleans and at 4:00pm at Tulane. Come say hi and let me know you are a Volokh reader. Here is the abstract for my talk:
Popular discourse on constitutional interpretation and judicial review tend to employ a series of catch phrases that have become constitutional clichés. Phrases such as “judicial activism,” “judicial restraint,” “strict construction,” “not legislating from the bench,” “Framers’ intent,” the “dead hand of the past,” “stare decisis” and the “living Constitution” so dominate public commentary on the Constitution and the courts that quite often that is all one hears. Unfortunately, even law professors are not immune. There was a time when each of these catch phrases meant something and although each could mean something again, in current debates all have become trite and largely devoid of substantive. In short, they have become clichés.
In this talk, I explain why these clichés should be abandoned even in casual conversation. Somewhat surprisingly, it turns out that several of them are connected by a common thread: the apparent desire by commentators to avoid substantive constitutional argument in favor of a process-based analysis that can be easily leveled in the absence of any expertise on the issues raised by a particular case. In other words, at least some of the appeal of these constitutional clichés is that they enable commentators to criticize the Court or particular decisions without actually having to know much about the Constitution itself.