In Praise of Diverse Discourse

Authors

Neil H. Cogan, Lawyering and Clinical Education, Southern Methodist University School of Law

First Page

173

Document Type

Comment

Abstract

Professor James A. Gardner's article, The Failed Discourse of State Constitutionalism,' is an obituary to state constitutional law. Like some recent academic notices of death, it is not simply premature. It is misconceived. Professor Gardner's obituary has two parts, an empirical part that argues that state constitutional law discourse and, in effect, state constitutional law has failed; and a political part that argues that state constitutional law ought to fail. Neither part is dependent upon the other. Even had Gardner found that state constitutional law discourse is robust, he would nonetheless have argued that state constitutional law ought to fail. That he found such discourse is in fact failing, fits nicely with, but is not caused by, what ought to be. A complete reply to Gardner requires a book,2 a charge of failure not being sufficiently answered by allegations of success. The charge is, however, so damning that a reply, albeit brief, is required. In Part I, I argue that Gardner's method of analysis is flawed. In Part II, I compare the discourse in two state supreme court opinions, contemporaneous with the options studied by Gardner, with the discourse in their United States Supreme Court counterparts, and I argue that the state opinions fare well in comparison. Finally, in Part Ell, I take issue with Gardner's political argument and his discourse about discourse.

Recommended Citation

Neil H. Cogan, In Praise of Diverse Discourse, 5 St. Thomas L. Rev. 173 (1992).
Available at: https://scholarship.stu.edu/stlr/vol5/iss1/10