Thomas P. Crocker, University of South Carolina School of Law, is publishing Dystopian Constitutionalism in volume 18 of the University of Pennsylvania Journal of Constitutional Law (2015). Here is the abstract.
This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, what differentiates dystopian constitutionalism is that it does not purport to provide a comprehensive way of understanding the Constitution. Rather, in the spirit of what Judith Shklar calls the “liberalism of fear,” it provides a way of organizing constitutional argumentation in opposition to states of government Americans might wish to avoid. It helps in understanding how to better implement constitutional principles into workable rules, not by holding up an ideal, but by urging us away from the negative alternative. In this respect, dystopian constitutionalism is focused less on obtaining an ideal state of governance than on achieving a workable system of self-governance that would avoid descent into tyranny. It has been particularly salient in criminal procedure and First Amendment cases, on which this article focuses. As a mode of argumentation, dystopian constitutional analysis uses consequence avoidance arguments often taking the form of slippery slopes. It also makes use of negative exemplars and legal archetypes — the latter first developed by Jeremy Waldron as a way of organizing our understanding of more holistic bodies of law. This article also explores how consequence avoidance arguments can be turned on their head by a different ordering of priorities. Practices once thought undesirable can lose their taint, a shift reflected in the relationship between the logical argument forms of modus tollens and modus ponens. This shift in argument form is exemplified, as this article discusses, in the contrast between the Fourth Amendment reasoning found in the 1948 case Johnson v. United States and the 2011 case Kentucky v. King. Beyond describing how dystopian analysis works, I argue normatively that there are a number of positive effects in using a dystopian analysis. One of the chief virtues of which is to encourage more holistic analysis of legal rules, which has particular salience in Fourth Amendment cases. Moreover, holistic consideration of constitutional values in service of consequence avoidance arguments does not render dystopian constitutionalism into a version of irrational “tyrranaphobia,” as some scholars have argued. Rather, methodologically it is about keeping in mind negative boundaries, and providing a grammar for talking about how to construct rules that steer us away from negative consequences. Substantively, it is about affirming national agreements on core values and commitments comprising a constitutional identity. When agreement proves elusive, dystopian constitutional analysis supplements other constitutional arguments to facilitate analysis of the more comprehensive constitutional fidelity and fit we might expect from a proposed decision.Download the article from SSRN at the link.