This Article critically examines this “wall of authority” and evaluates the true doctrinal standing of the right to affordable bail. After developing a novel rhetorical account of legitimacy in constitutional argument, the Article demonstrates that authority supporting the bail-bond position is illegitimate in two senses – it is formally invalid and normatively “out of bounds.” The authority is formally invalid because it originates from a single implausible constitutional interpretation then echoed blindly in the name of following precedent. It is normatively inappropriate because it ignores Supreme Court doctrine that requires equal justice for indigents facing incarceration.
Some walls are obstacles to freedom and justice. To liberate Eastern bloc societies oppressed by totalitarianism, President Reagan famously implored Mikhail Gorbachev to tear down the Berlin wall. The metaphorical “wall of authority” endorsed by the bail-bond industry also imperils liberty – so this Article tears it down with original rhetorical theory and robust doctrinal analysis.