Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Is There An Unthinkability Doctrine? on SSRN. Here is the abstract:
In Bolling v. Sharpe, the Supreme Court struck down a federal statute mandating racial segregation in the District of Columbia public schools, stating that it would be “unthinkable” to allow Congress to impose racial segregation while forbidding the states from doing the same thing. The standard legal materials could not easily be read to justify the result in Bolling; the judgment about what was “unthinkable” seemed to be doing crucial work. The Unthinkability Doctrine is the best explanation of the result in Bolling. The same doctrine plausibly helps account for other rulings as well, both old and new. Consider, for example, the conclusion that the Free Speech Clause constrains the president and the courts, not just Congress; the “shock the conscience” test (sometimes called the “puke test”); the use of questionable historical analogies to uphold the independence of the Federal Reserve Board; protection of the use of contraceptives by married couples; and the holding that the Second Amendment does not give a right to possess firearms to someone subject to a restraining order for domestic violence. The Unthinkability Doctrine raises many puzzles, some involving scope, others involving legitimacy. It is telling that there is no formal Unthinkability Doctrine; it is also telling that on important though rare occasions, some such doctrine seems to be in place.
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