The occasions on which ajudge or legal scholar has peered into the depths of the Constitution and found, to her surprise, that the Constitutionrequiresthe opposite ofher ideologicalpreferences, are extremely rare. Yetjudges andscholarscontinuetopresenttheirconclusionsastheproduct ofideologicallyneutralreasoning,while often criticizingthe ideologicalbiasin thereasoningoftheiropponents.A Wittgensteinianperspectiveonthenatureof legaldiscoursecanshed lighton thispuzzlinglypersistentstateofaffairs. Legal discourse, includingconstitutionalargument, is partly defined by the blending ofdescriptive reasoningabout what the law is with prescriptivereasoningabout what the law ought to be. To reach a legal conclusion based on a blend of descriptiveandprescriptivereasoning,andtophrasethis conclusion aspurely descriptive, as legal actors habitually do, is not to violate the rules of legal discourse, but to abide by them. Taking this conception of legal discourse as a starting point, the Article extends Sanford Levinson's analogy between U.S. constitutionalism and religiousfaith. Just as we can distinguish at least three attitudes toward a religious belief-fundamentalism, atheism, and non- fundamentalistfaith-so we candistinguishatleast three analogousapproaches to legal and constitutionaldiscourse. Jack Balkin's Constitutional Redemption illustrates the often neglected possibility of a constitutional faith without fundamentalism.
Between Description and Prescription: Law, Wittgenstein, and Constitutional Faith,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol120/iss2/4