Rhetorical epochs in the jurisprudence of race: An inquiry into Supreme Court legitimation and change.

摘要

This study's problematic is the seemingly paradoxical fact that, despite the Constitution's indeterminate meaning and the "dire counter-majoritarian difficulty," Supreme Court doctrine has gravitated toward the pole of continuity and has maintained legitimacy even across the threshold of dramatic doctrinal change. To account for this fact, the works of M. M. Bakhtin, Hans Blumenberg, Kenneth Burke, John Angus Campbell and Jurgen Habermas (inter alia) are critically integrated. Together, they suggest that history is best conceptualized as an ongoing process of epochal succession, that epochs are bracketed by their symbolic coherence, and that the underlying functional continuity of these epochs accounts for their maintenance of legitimacy. Applying these insights to nearly a century of Supreme Court jurisprudence in school desegregation, voting rights and affirmative action, this project isolates time periods marked by symbolic cohesion and examines these time periods for patterns of stabilization and change. Critical emphasis is placed upon how the Court creates new meanings, how these "new" meanings maintain historical continuity, and why this modicum of continuity serves a legitimating function. Simply put, the Court remains legitimate by identifiably engaging the "great" (and recurring) constitutional questions. By conceptualizing legitimacy as a functional accomplishment of Court doctrine, this project proposes a rhetorically driven model of conceptual change. A rhetorical emphasis, in fact, is what distinguishes this study's historiographical approach from those offered by (for example) Thomas Kuhn, Michel Foucault and Stephen Toulmin. This project concludes by speculating on its utility to ideological critics. Habermas has insisted that the notion of legitimacy possesses a normative dimension; to him, a law's "legitimacy" resides not simply in its popular acceptance but also in its discursive redeemability as a contestable validity claim. While many legal rhetoricians have explored their critical projects from a postmodern perspective, an approach to legal criticism predicated upon communicative rationality provides an alternate framework that is more consonant with the suppositions of rhetorical agency.