Williams on American Exceptionalism as/in Constitutional Interpretation @BYULaw @GaLRev

Lucy Williams, Brigham Young University Law School, has published American Exceptionalism as/in Constitutional Interpretation at 57 Georgia Law Review 1071 (2023). Here is the abstract.

American exceptionalism—the idea that America is superior, chosen, and tasked with a unique mission—is a foundational part of America's political culture. Its themes regularly appear in political speeches, at campaign rallies, and at national celebrations. But exceptionalism also appears frequently in another, less obvious place: Supreme Court opinions. Scholars and pundits routinely scour these opinions to identify the jurisprudential theories and political leanings that drive case outcomes. But as yet, legal scholars have paid little attention to the exceptionalist themes in the Court's case law. Some legal scholars study the ways American constitutional law is distinctive, or exceptional, when compared to law in other countries, and many are eager to predict and explain the Supreme Court's behavior. But few analyze exceptionalism as a judicial ideology or worldview, and none consider whether exceptionalist commitments influence the Court's decisions. In this Article, I respond to this key omission by offering the first systematic study of American exceptionalism and Supreme Court jurisprudence. I argue that American exceptionalism is a powerful and important feature of Supreme Court decision making. Through close reading and rhetorical discourse analysis of five landmark Supreme Court decisions, I demonstrate that the Court frequently invokes and deploys exceptionalist themes when interpreting the Constitution. This Article also reveals that the Court relies on two distinct modes of exceptionalist rhetoric. The first, which I call accomplished exceptionalism, is self-celebratory and assumes that America will always be great. The second, which I call aspirational exceptionalism, is self-critical and treats American greatness as a contingent possibility. The Court's invocation of these modes is not random but instead correlates closely with the outcome in a case. Specifically, in cases upholding exercises of government power, the Court favors accomplished exceptionalism, but in cases affirming individual rights claims, it relies on the aspirational mode. These findings have important implications. The correlation between exceptionalism and case outcomes suggests that exceptionalism might have a causal effect on judicial decision making—that it, like judges' ideology or theories of statutory interpretation, might drive the Court to reach particular results. If this is so, exceptionalism has been hiding in plain sight—as neglected as it is ubiquitous—as an element in Supreme Court decision making. It is past time for scholars to give exceptionalism the same attention they have given to other outcome-determinative phenomena.

Download the article from SSRN at the link.