From Off the Wall to On the Wall: How Social Power Shapes Legal Reason

I've posted my latest article, From Off the Wall to On the Wall: How Social Power Shapes Legal Reason, to SSRN. Here is the abstract:Throughout the history of the Constitution legal arguments have moved from being "off the wall"-- crazy incompetent, and beyond the boundaries of professional reason, to "on the wall"-- plausible claims on which reasonable minds can differ. Some of these claims have eventually become part of the law, and a few have become orthodox, so that denying them would be off the wall.This article explains how and why this happens. Arguments move along a spectrum of plausibility depending on who occupies important nodes of power and influence in society. These include political leaders, political parties, social movements, the media, elite lawyers, and legal intellectuals. When powerful actors invest in a fringe claim, they compel the legal profession to debate it. Arguments move on the wall not by general acceptance but by compelled engagement.Several examples…