Constitutional Law as Fiction

Narrative in the Rhetoric of Authority

By (author) Lewis H. LaRue

Paperback - £28.95

Publication date:

15 April 1995

Length of book:

168 pages


Penn State University Press

ISBN-13: 9780271014074

The fundamental thesis of Constitutional Law as Fiction is that in writing the opinion that explains a judgment, a judge not only analyzes and organizes precedent and makes and defends policy or value judgments, but he or she also tells a story, much as a historian does.

Like a history, this story has the appearance of simple truth, but, in fact, of necessity, it is a "fiction" as well—not in the sense of a lie or fairy tale, but in the sense of a constructed meaning. Strangely enough, these fictions persuade those who read them and those who write them, and without this persuasion, the law would lose much of its authority. L. H. LaRue examines several critical Supreme Court cases, including Everson v. Board of Education and Marbury v. Madison, and specifically examines the rhetorical techniques of Chief Justice John Marshall.

In analyzing the construction of meaning in the rhetoric of the law, LaRue ultimately contends that judges must not abandon the "fictions" in their judgments; they must strive to improve them.

“LaRue is interested not in the simple claim that meaning is constructed, but in demonstrating the particular ways in which judicial writers create meaning in particular cases, and how in doing so they succeed, or fail, in creating the grounds of their own authority. . . . LaRue opens up a new set of questions and concerns, which should be of great value to lawyers, judges, and others interested in constitutional law, or law more generally.”

—James Boyd White, Author of The Legal Imagination