Prudentialism in McDonald v. City of Chicago

Authors

Neil S. Siegel, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

2010

Journal Title

Duke Journal of Constitutional Law & Public Policy

ISSN

1937-9439

Abstract

At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court’s preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court’s effectiveness, but also what response is best for the constitutional system as a whole when the Court’s legitimacy is not at stake.

The Court’s recent decision in McDonald v. City of Chicago illustrates the practice of system-centered prudentialism. Judging from the concerns raised by several Justices at oral argument, especially Justice Scalia, members of the McDonald plurality appeared to reason prudentially in deciding to use Section One of the Fourteenth Amendment’s Due Process Clause — and not its Privileges or Immunities Clause — to apply the Second Amendment to state and local governments. But the Court reasoned prudentially in substantial part because it was troubled about the consequences for the American constitutional system of opening up a Pandora’s Box of new assertions of unenumerated rights, not because its own legitimacy was threatened.

McDonald illustrates the importance of understanding why judges may decline to fully acknowledge their own practice of prudentialism. McDonald also illustrates the need for constitutional theory to accommodate the practice.

First Page

16

Last Page

30

Num Pages

15

Volume Number

6

Issue Number

Special Issue

Publisher

Duke University School of Law

Recommended Citation

Neil S. Siegel, Prudentialism in McDonald v. City of Chicago, 6 Duke J. Const. L. & Pub. Pol'y 16 (2010).
Available at: https://scholarship.law.tamu.edu/facscholar/2265

File Type

PDF