ALL RIGHT ALREADY!!!

The reason why I've just posted 1000+ words on Estrada (on a blog that I usually use for international affairs) is that I have a professional interest in the use of constitutional arguments outside of the courts. The judicial nominations process is, as Robert Nagel and Mark Tushnet -- among others -- have argued, a place where a certain kind of public constitutional dialogue takes place. Especially in the age of C-Span, Senators are intensely focused on the task of talking to the public, meaning their base plus potential voters in their district. I'm really interested in the ways Senators employ constitutional arguments for public consumption because I think it says something important about how Senators view their responsibilities, their party, and the political and constitutional sophistication of (and the role of) the public. Plus, judicial nominations have become one of the areas in which interest groups articulate constitutional purposes to Senators they are trying to influence and to the public(s) that they are trying to get to influence Senators.

I am particularly interested in the relationship between party claims, party mobilization techniques, publicity, interest groups and constitutional dialogue. One thing I am fascinated by is the almost pathological drive toward what I'll call constitutional synecdoche. That would make a nice, pretentious title for an article, no? What I mean here is the way in which partial constitutional views come to occupy the rhetorical space of the Constitution as a whole. What's fascinating is the attempt to enlist a certain kind of presumed legitimacy -- that of appealing to the Constitution -- in particular partisan and political debates. One thing I find fascinating about the attempt is that it has a very strange structure of audience: given intense constitutional dispute, you're never going to convince someone to agree with you just because you can advance what you call a decisive constitutional argument. It is absolutely pointless to tell an anti-abortion advocate, after you have had a long discussion about your views: "well, after all, abortion is constitutional, after all."

In that dialogue, the final move sounds more emotive than anything else. And yet, such arguments are often employed as if they were meant to convince the unsure, the fence-sitter, the swing voter. The real effect of constitutional synecdoches is, I suspect, more to rally the faithful by blurring the boundaries between self-interest and the common interest. A synecdochic constitutional appeal is an appeal to a norm, but lots of people know that these norms are malleable and contested. Such an appeal is also an attempt to state a simple fact about the world, but it's also not clear what kind of fact it is other than a fact of the form: it is the case about the world that some people have made constitutional arguments for my position. Finally, the appeal has a kind of expressive component, as in, "I am the kind of person who thinks that XX is constitutional." This last form of constitutional appeal is always there and often has the tendency to overwhelm the other kinds of appeals. The tag line is, "aren't you, too?"

At any rate, maybe you can see why I've been mulling over the Estrada nomination and the kind of thing I'm trying to think about with regards to it. The attempt at a rhetorical or speech-theoretical anaylsis might not amount to much at the end of the day. But attention to constitutional discourse outside of the courts is absolutely essential and quite fascinating. It's important to understand the distinct structure of that discourse as well. That's what I'm trying to do, for my own quasi-professional purposes.