I want to make the following three points:
First, constitutional discourse has changed from the consequentialism of the generations of lawyers and judges who followed the model of Benjamin N. Cardozo to the formalism now ascendant in bench and bar.
Second, this change in constitutional rhetoric and argument has widened the disjunctions in argument. Polling data make clear that people have their own views of the Constitution. Knowledge about contrary official interpretations gives them vocabulary, but is relatively unlikely to change minds. Moral arguments and appeals to self-interest are more effective with the public.
Third, one consequence is that both the form and the substance of constitutional guarantees may be threatened by the turn toward a type of legal discourse that omits explanation of the moral imperatives and real-world risks and consequences that mandate the imposition of constitutional guarantees.
Gottlieb, Stephen E.
"The Passing of the Cardozo Generations,"
Akron Law Review: Vol. 34
, Article 10.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol34/iss1/10