Neither trumps nor interests: Rights, pluralism, and the recovery of constitutional judgment

This article develops a novel framework for rights adjudication responsive to an age of bitter partisan polarization. What warrant do judges have to resolve deep conflicts over values in a pluralistic political order? In the American constitutional tradition, the answer has historically turned to doctrinal categories, which draw strength from a claim about expertise: the judicial skill to interpret categorical boundaries beyond which democratic decision-making must not reach. But the categorical approach, as Professor Jamal Greene has powerfully argued in a recent article, risks embracing the absolute nature of constitutional rights as ‘trumps’. It distorts, or simply ignores, salient values and thus further alienates citizens from one another. Proportionality analysis, favored by Greene to replace categoricalism, offers a second answer. But proportionality gives rise to an important inverse dynamic. Proportionality conceives rights not as trumps but as interests and constitutional adjudication as the pragmatic balancing of those interests at singular points in time. While it can authentically claim to keep better track of competing values in the present and justify their infringement, proportionality nevertheless invites the objection that judges have neither the democratic pedigree nor relative competence to weigh the relevant costs and benefits. Proportionality thus strains the legitimacy of judicial review, I argue, by enforcing a rights-absolutism of its own. Proportionality holds the underlying substantive meaning of rights as a constant. It reduces the pluralism of rights adjudication merely to the variable extents to which this content can justifiably be limited or infringed in any individual case of conflict. This loses a crucial achievement of American constitutional theory: the idea that paradigmatic judicial interpretations of rights trace the self-authorship of a democratic polity over time. To the same degree as categoricalism, albeit by different means, proportionality analysis undermines the institutional, hermeneutic, and political resources to transcend or accommodate difference. The article makes two broad interventions in response to these considerations. First, it cautions against a flawed normative overcorrection in the suggested turn from categoricalism toward proportionality in US constitutional interpretation. It reconstructs the variant of absolutism at work in each mode of rights interpretation in light of two distinctive (and unsound) paradigms of constitutional democracy. To demonstrate the stakes of this criticism, I draw on comparative constitutional scholarship concerning the limitations of European jurisprudence employing proportionality analysis—and examine how such limitations align neatly with those criticisms Greene levels at American categoricalism in various areas of US constitutional law. Second, the article offers an alternative. American constitutional theory requires a novel guiding light, which I term ‘narrative doctrinalism’. On this model, judicial review aims not merely to constrain democracy (categoricalism) or justify governance (proportionality) but instead to make possible a distinctive quality of democratic judgment. Set in a narrative frame, rights are neither trumps nor pragmatic interests to be balanced in proportion, but nodal commitments made in time. Their scope of application is not unlimited; but neither is their meaning timeless, simply to be narrowed or infringed where particular conflicts dictate. Rights have pasts and futures that demand historically-grounded interpretation, which judges are uniquely well-positioned to provide. The article develops narrative doctrinalism’s normative and methodological insights in detail. It then applies them to a salient case from the Supreme Court’s prior term: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case whose resolution is likely to guide—for good or ill— how the Court will dispose future analogous conflicts among rights regimes in other areas of law.