Constitutional Law as Fiction: Narrative in the Rhetoric of Authority.

• Author: Solove, Daniel J.

In Constitutional Law as Fiction, L.H. LaRue examines the art of storytelling in the law. Because his book seeks to read the law as an "example of literary fiction" (p. 2), LaRue argues that it should be classified as part of a unique area of scholarship called "law and rhetoric" (p. 3).(1) According to LaRue, judicial opinions are, in large part, stories. Thus, LaRue does not advance a normative claim about the degree to which rhetoric should inhabit legal texts;(2) rather, he describes the law as essentially a rhetorical enterprise.(3) LaRue's thesis is that the stories in legal opinions are composed not solely of facts but of fictions. A fiction, LaRue claims, is commonly defined as "a story about something that didn't really happen" (p. 13).(4) By masquerading as facts, fictions can increase the persuasiveness of a narrative. Fictions thus serve as an essential component of our legal system (p. 8): "Without persuasion, law could not be law," LaRue notes, "and without fiction, there would be no persuasion" (p. 11).

In an interesting and complex discussion, LaRue analyzes the difficulty in drawing the boundaries between fact and fiction. "[M]ost discourse is in part fictional" (p. 13), and all stories are composed of both fact and fiction (p. 14). Fictions "fill in gaps" in our narratives and plug the holes in our empirical evidence (p. 20). In addition, we can create fictions by the way we craft our narratives; when we select and order the facts, we erect an artificial construction of reality that can be incomplete or misleading. For LaRue, there is no strict dichotomy between fact and fiction because all stories are produced at least partly from our imagination (p. 13).

After establishing the framework from which he plans to analyze the law, LaRue launches into a literary exegesis of numerous constitutional opinions, including the Dred Scott case,(5) Everson v. Board of Education,(6) and City of Richmond v. J.A. Croson Co.,(7) exposing the fictions in their narratives. But most of the book centers on what LaRue characterizes as the two fundamental stories of constitutional law: Marbury v. Madison(8) and McCulloch v. Maryland.(9) LaRue proceeds to dissect the opinions, both authored by Chief Justice Marshall, exposing the Justice's rhetorical tactics and separating the narratives from the theoretical legal arguments. For example, in his explication of McCulloch, LaRue demonstrates how Marshall uses a fiction--"that judges stand above the fray and thus can bring peace" (p. 73)--to compose a narrative that validates Marshall's interpretation of the Constitution as a flexible document designed for an evolving society (pp. 89-90). Thus, LaRue uses the storytelling of Chief Justice Marshall to strengthen his own claims about how fictions perform the essential task of persuasion.

LaRue's thesis, on a purely descriptive level, fails to propound any novel claims. Several scholars have explicated legal opinions as literary texts.(10) Numerous scholars have exposed the powerful effects of narrative and rhetoric in law.(11) Other scholars have viewed law as a struggle between narratives, often resulting in the exclusion of outsider discourse.(12) Thus, the claim that judicial opinions are narratives...