10 - The Paradigm Shift from Formalism to Instrumentalism and Constitutional Law

Summary

At some point, the necessary interpretation of vague, abstract, and nonspecific provisions in constitutions, including the United States Constitution, places appellate courts, including the United States Supreme Court, in a jurisprudential position very similar to the one they occupy when engaged in traditional common law analysis and lawmaking. Working out the specific doctrinal meaning of constitutional phrases such as “free speech,” “establishment of religion,” and “equal protection” is a jurisprudential task not unlike working out the specific doctrinal meaning of “duty,” “breach,” or “causation” in the common law of negligence.

This means that as a practical judicial matter, the development of constitutional law is often very similar in nature to traditional common law lawmaking. Thus, a court such as the United States Supreme Court can accurately be thought of as often operating like a common law court, despite the relative paucity of federal common law.

This chapter takes advantage of this insight to apply the nature of the paradigm shift from formalism to instrumentalism, and its many consequences, to the area of constitutional law. More specifically, it offers an example of instrumentalist common law analysis applied to the constitutional law free speech doctrine of prior restraint.