Bernick on Constitutions of Fire and Ice @EvanFloof @jackbalkin @PennLRev @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, is publishing Constitutions of Ice and Fire in the Pennsylvania Law Review. Here is the abstract.

Constitutional theory studies the birth and death of normative universes. Constitutions originate in “hot” universes, from fiery constituent power which forges institutions and norms that come to be seen as fixed and unchanging. Even in the “cooled down” universe, constituent heat is capable of transfiguring, transforming, and even consuming constituted power. No constitution which derives its legitimacy from popular sovereignty can long survive the estrangement of the living from what is perceived as a cold, dead legal order. Jack Balkin’s Memory and Authority tries to navigate between fire and ice, fixity and flux. Since Balkin’s conversion to originalism, he has been a steadfast defender of faith in the basic legitimacy of the Constitution of the United States and a keen critic of interpretive approaches which tend to undermine its legitimacy. His Constitution is a framework which has some fixed, “hard-wired” features but which also provides considerable space for politics. Popular multitudes in the present can join multitudes past in an intergenerational democratic project committed to the realization of enduring constitutional principles. Through faithful construction, an imperfect Constitution borne of sin can be redeemed and become our law. Memory and Authority maintains that originalist arguments play an important role in this democratic project. Balkin considers them to be a particularly effective means of harnessing the power of cultural memory. Balkin counsels everyone to use them. He specifically urges left-liberals to set aside their misgivings about a mode of argument that is primarily deployed by political conservatives, both for the sake of achieving left-liberal political goals and for the sake of democracy. I contend that Balkin’s map of the U.S. constitutional universe is neither cold nor hot enough to be complete or convincing. It’s not cold enough because the framework Constitution and durable political-economic structures which it presupposes and perpetuates skew constitutional decisionmaking in democratically disempowering ways. It’s not hot enough because Balkin neglects the ways in which the framework has been shaped—for good and ill—by fiery constitutional faiths. For all the space that he seems to leave for flux, Balkin takes too much fixity for granted. To illuminate the strengths and limitations of Balkin’s constitutional theory, I put his work in conversation with the anti-essentialist cosmological theory of Roberto Mangabeira Unger, among the founders of a critical legal studies movement to which Balkin was in his early career a major contributor. I also describe the constitutionalism through which Native peoples have built power in the United States, notwithstanding a colonialist Constitution. This constitutionalism is animated by faith, but that faith looks little like Balkin’s. And it illustrates why arguing about history can be a dangerous strategy for peoples marginalized by the framework Constitution.

Download the review from SSRN at the link.

Alicea on The Natural Law Moment in Constitutional Theory @HarvardJLPP @CathULaw

 J. Joel Alicea, Catholic University of America School of Law, is publishing The Natural Law Moment in Constitutional Theory in volume 48 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for constitutional theory of our natural-law moment? This essay sketches answers to these questions, with the caveat that much more could be said about them. This essay was originally delivered as the Herbert W. Vaughan Memorial Lecture at Harvard Law School on April 9, 2024.

Download the article from SSRN at the link.

Bassok on The Absolutist Judiciary @UniofNottingham

Or Bassok, University of Nottingham, Faculty of Law and Social Sciences, has published The Absolutist Judiciary. Here is the abstract.

The judicial authority to strike down constitutional amendments is not an advanced constitutional technology that merely upgrades judicial review. Rather, this authority is part of a jurisprudence of absolute truths that is antithetical to liberal democracy. Treating this authority as a mere technology stands at the core of the attempt to justify it based on fusing the ideas of two of Weimar’s great legal minds, Hans Kelsen and Carl Schmitt. Fusing Schmitt’s ideas with Kelsen’s enabled the transfer of this authority from the president, as Schmitt envisioned, to the constitutional court that Kelsen designated to serve as the guardian of the constitution. Yet, Kelsen rejected the authority to review constitutional amendments because a liberal democratic system cannot include an institution deciding on absolute truths that cannot be changed by the democratic process. Contrary to Kelsen, Schmitt believed that the constitution anchors the fundamental political core truth of the state. Yet, Schmitt rejected the idea that an inherently political function of defending the state’s fundamental political decision can be endowed to the judiciary. I agree that courts may be justified in exceptional and extreme situations to break constitutional constraints—including striking down constitutional amendments—to save democracy from the people. However, the attempt to juridify the authority of reviewing constitutional amendments under a legal doctrine necessarily leads to corruption either of constitutional law as Kelsen predicted or of the judiciary as Schmitt thought. Normalizing the exception by creating a legal doctrine that endows the judiciary with the final say that cannot be amended by any democratic means is the end of liberal democracy, even if it is the judiciary that hands down absolute truths.

Download the article from SSRN at the link.

Webb on The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson @YaleLawSch

Derek Webb, Yale Law School, has published The Great Synthesizer: Natural Rights, the Law of Nations, and the Moral Sense in the Philosophical and Constitutional Thought of James Wilson at 12 British Journal of American Legal Studies 79 (2023). Here is the abstract.

This article argues that the key to understanding James Wilson, one of the leading architects of the Constitution and the first Supreme Court Justice to be sworn in, and yet arguably the most neglected and misunderstood figure from the founding generation, is as a "great synthesizer" of seemingly disparate philosophical and constitutional commitments. Drawing upon the natural rights tradition of early classical liberalism as envisioned by John Locke, Wilson insisted that the new federal government be as democratic and broadly reflective of "We the People" as possible. Drawing upon the law of nations tradition as articulated particularly by Cicero, he became one of the nation's leading proponents of a strong, centralized federal government in order to form "a more perfect union." And inspired by the concept of the moral sense and the innate sociality of the human person as discussed in the Scottish Enlightenment by Thomas Reid and Francis Hutchinson, he made clear that the "blessings of liberty" were contingent upon an active and engaged citizenry on the national level. By understanding this overlooked, synthetic quality of Wilson's thought, we may better understand, in all its richness and complexity, the unique role Wilson played in America's creation story, gain a new perspective on the original Constitution itself, its achievements and its flaws, and reconstruct a compelling constitutional theory that cut across the political alignment of the day but perhaps better anticipated subsequent constitutional development than any of the prevailing positions in 1787. Note: Creative Commons License This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.

Download the article from SSRN at the link.

Tushnet on Varieties of Constitutionalism @Mark_Tushnet @Harvard_Law

Mark Tushnet, Harvard Law School, has published Varieties of Constitutionalism. Here is the abstract.

This essay, to appear in a revised version in the Elgar Research Handbook on Constitutionalism and Legal Theory, deals with two broad varieties of constitutionalism: political versus legal/judicial constitutionalism, and procedural (liberal) and programmatic (substantive) constitutionalism. The varieties are continuums rather than sharply defined categories, of course. It examines the arguments political constitutionalists use to reject challenges that the rules of ruling must be entrenched against majoritarian revision and enforced as law by courts, and their defense of political constitutionalism as a sufficiently stable method of resolving disagreements about the rules of ruling. It then examines the arguments legal/judicial constitutionalists make for a two-fold proceduralization to deal with reasonable disagreements about substantive policy, the first into a constitution and the second into judicial resolution of disagreement through the use of modes of reasoning that do not reproduce the underlying disagreements (and notes the challenge that such reasoning actually reproduces such disagreements but obfuscates that fact). Merely procedural constitutions must deal with, among other things, the constitutional version of the liberal paradox of tolerance, which some do through doctrines of militant democracy. Substantive constitutions here are divided into three subcategories: identitarian (ascribing a specific vision of nationhood, often ethnonationalist, into the constitution); constitutions incorporating second- and later generation rights (economic and environmental); and transformative constitutions. The essay examines various difficulties associated with each of these forms.

Download the article from SSRN at the link.

Sultany on Revolution in the Cambridge Handbook of Constitutional Theory @NimerSultany @CambridgeUP @rpbellamy1

Nimer Sultany, University of London, School of Oriental & African Studies, School of Law, is publishing 'Revolution', in The Cambridge Handbook of Constitutional Theory (Richard Bellamy and Jeff King – eds, Cambridge University Press) (forthcoming).

This chapter argues that an adequate assessment of revolutions (and the role of law in revolutions) is often stymied by historical exclusions and theoretical myopia. Historical exclusions centralise certain experiences and present sanitized and one-sided narratives of the revolutionary experiences they centralise, especially with respect to violence, slavery, and colonialism. On the basis of such ideological uses of history, theoretical accounts paper over these social and political realities in order to legitimate particular revolutionary constitutions and to elevate them to the status of a paradigm or ideal type. This paradigm serves as the yardstick by which other experiences are assessed. The main feature of this paradigm is that it postulates a distinction between political and social revolutions. It presents the American Revolution of 1776 as an exemplar for the political revolution that concerns itself with the establishment of government under law. In contrast, the French Revolution of 1789 is presented as an exemplar for the social revolution that also seeks to tackle social injustice. The deficiency of this paradigm construction is not merely methodological, but also substantive and normative. It reduces the plurality of the revolutionary phenomena despite the conceptual contestability of the revolution, whether in respect to its applicability to particular realities or the emphasis on continuity with, or rupture from, the extant order. It ignores the revolution’s dialectical nature by separating its assessment from the counter-revolution and thus exaggerates the role of violence in revolutions it disfavours, whereas it obscures the role of violence, slavery, and colonialism in the revolutions it favours. Finally, it presents a certain type of revolutionary constitutions (that are “political” not “social”) as ones that legitimate the polity despite the contestability of the revolutions that generated them, and notwithstanding the incoherence and instability of these constitutions. Moreover, this paradigm elevates counter-majoritarian revolutionary constitutions to be a product of an exceptional act of founding that need not be repeated (or radically revised) despite the constitutional order’s deficiencies, instability, and injustices.

Download the essay from SSRN at the link.

Havasy, Macey, and Richardson on Against Political Theory in Constitutional Interpretation @Maceyjoshua @VandLRev @Harvard_Law @CornellLaw

Christopher Havasy, Harvard Law School; Harvard University, Department of Government, Joshua Macey, University of Chicago Law School, and Brian Richardson, Cornell Law School, are publishing Against Political Theory in Constitutional Interpretation in the Vanderbilt Law Review. Here is the abstract.

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.

Download the article from SSRN at the link.

Alicea on The Role of Emotion in Constitutional Theory @CathULaw

J. Joel Alicea, Catholic Univesrity of America, Columbus School of Law, is publishing The Role of Emotion in Constitutional Theory in volume 97 of the Notre Dame Law Review (2022). Here is the abstract.

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories. The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords with modern science and the insights of many law-and-emotion theorists, it provides a firm foundation for an analysis of emotion in constitutional theory. Having laid that foundation, the Article examines the role of emotion in constitutional culture, the subset of national culture concerned with a constitution. Constitutional culture combines a society’s ideas about, and emotional attachments to, its constitution. Here, the Article develops a novel synthesis between Aquinas’s model of emotion and Edmund Burke’s sophisticated exploration of the importance of emotion in constitutional culture. Burke argues that theories of constitutional legitimacy shape constitutional culture and must accord with it. If a theory of legitimacy is at odds with a society’s constitutional culture, the society risks the instability of the regime. This insight—which is consistent with Aquinas’s model of emotion—is the primary basis for understanding the role of emotion in constitutional theory. Finally, the Article turns its attention to constitutional theory. Observing that popular sovereignty is the theory of legitimacy endorsed by our constitutional culture, the Article argues—based on the synthesis of the Thomistic and Burkean accounts—that emotion should play an important role in evaluating the contours and viability of theories of legitimacy. Theories of legitimacy that accord with popular sovereignty have a stronger argument in their favor because they reinforce the emotional attachments that lend stability to our constitution. Theories of legitimacy that reject popular sovereignty, by contrast, must be modified or abandoned or, alternatively, must explain why attempts to change our constitutional culture will avoid the instability that the Thomistic and Burkean accounts would predict. The Article therefore has particular relevance to assessing radical constitutional theories—whether from the political right or the political left—that are critical of American constitutional culture. The Article concludes by exploring the implications of emotion for constitutional doctrine, focusing on stare decisis and the examples of Roe v. Wade, 410 U.S. 113 (1973), and Miranda v. Arizona, 384 U.S. 436 (1966).

Download the article from SSRN at the link.

Alicea on Liberalism and Disagreement in American Constitutional Theory

J. Joel Alicea, Catholic University of America, Columbus School of Law, is publishing Liberalism and Disagreement in American Constitutional Theory in volume 107 of the Virginia Law Review (2021). Here is the abstract.

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused around the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate about two propositions that are central to the liberal tradition: individualism and rationalism. Viewed in this way, constitutional theorists often thought to be opposed to each other are, in fact, allies in the debate over liberalism, even if they disagree about whether their shared theoretical premises imply an originalist or non-originalist methodology. Conversely, theorists often seen as allies profoundly disagree about the premises of their constitutional theories because they disagree about liberalism. Reorienting American constitutional theory to focus on the disagreement over liberalism will help us identify which constitutional theory is best and better understand the outcomes in important constitutional cases.

Download the article from SSRN at the link.

Voigt on Minding the Gap: Analyzing the Divergence Between Constitutional Text and Constitutional Reality @CESifo @ILEHamburg

Stefan Voigt, University of Hamburg, Institute of Law & Economics; CESifo (Center for Economic Studies and Ifo Institute), has published Mind the Gap – Analyzing the Divergence Between Constitutional Text and Constitutional Reality Here is the abstract.

Constitutional Economics – the analysis of constitutions drawing on the economic approach – has made important progress over the last two decades. The factors determining whether a constitution is complied with, however, have received only little attention. This is surprising, as a huge gap between constitutional text and constitutional reality seems to exist in many countries. In this paper, this gap is referred as the de jure/de facto gap. The paper discusses ways in which the gap can be researched systematically and surveys the scant available literature that has tried to do so thus far.

Download the article from SSRN at the link.

Peter Haeberle on Constitutional Theory: Constitution on Culture and the Open Society of Constitutional Interpreters: New From Hart Publishing @hartpublishing

New from Hart Publishing: Peter Haeberle on Constitutional Theory: Constitution as Culture and the Open Society of Constitutional Interpreters: Markus Kotzur, ed., Hart, 2018. Here from the publisher's website is a description of the book's contents.

Peter Häberle, one of the most eminent constitutional lawyers in Germany and beyond, has devoted over four decades of academic work to one central idea: that processes of constitutionalisation are cultural processes and their outcome, the constitution, thus qualifies as an emanation of culture itself. This volume introduces six seminal centrepieces of Häberle's constitutional cosmos to an English-speaking audience. His reflections on “Fundamental Rights in the Welfare State” introduced a “flexible dogmatic of human rights” according to which all human rights can be conceived social rights. “The open society of constitutional interpreters” and the classical piece on “Preambles in the text and context of constitutions” revolutionised constitutional interpretation theory. In his article on human dignity, Häberle paved the way for conceptualising this notion as a textual foundation of constitutional Democracies. The last two papers present the rationale for a cultural concept of constitutions and apply to the European plane, too. This book will allow readers to get to know Peter Häberle as a scholar who wants to discover the world beyond positive law.

ICYMI: Finkelman on Frederick Douglass's Constitution @PaulFinkelman @GratzCollege

ICYMI: Paul Finkelman, Gratz College, has published Frederick Douglas's Constitution: From Garrisonian Abolitionist to Lincoln Republican at 81 Missouri Law Review 1 (2016). Here is the abstract.

This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, as an antislavery activist, and then as a spokesman for African Americans during the Civil War. This Article provides insights into antebellum constitutional thought and the background to the Fourteenth Amendment. This Article also explores our understanding of the Constitution and its relationship to slavery through the lens of Frederick Douglass. First, the Article looks at how the Constitution impacted Douglass and how Douglass was himself a “constitutional actor,” even though he held no public office and was not even considered a U.S. citizen under the holding in Dred Scott v. Sandford. For example, Douglass was a constitutional actor when he escaped from slavery – and thus came under the Fugitive Slave Act of 1793 and Article IV, Section 2, Clause 3 of the Constitution; when he married in New York but was still a fugitive from Maryland; when he applied for, and received, a copyright for his first autobiography, even though he was a fugitive slave at the time; and when he left the United States for Great Britain without a passport. This Article also explores Douglass’s constitutional theories and understandings and how he used the Constitution to oppose slavery. I argue, in part, that his understanding of the Constitution and his approach to constitutional interpretation changed as his life circumstances changed. Thus, when he returned from England, he was a free man because British friends had purchased his liberty. This led him to a new understanding of how to approach the Constitution and how to fight slavery under the Constitution. While essentially a work of legal history, this Article also offers ways of understanding constitutional theory and the elements of being a constitutional actor. The Article also raises issues of interstate comity and the recognition in one state of a status created in another. While not explicitly stated – because this is a work of legal history – this Article obviously has implications for modern issues surrounding marriage equality, child-custody based on interstate recognitions of status changes, the interstate recognition of gender transitions, and the legal rights of non-citizens within the United States.

Download the article here.

Rappaport and McGinnis on The Constitution and the Language of the Law

Michael B. Rappaport, University of San Diego School of Law, and John O. McGinnis, Northwestern University, Pritzker School of Law, have published The Constitution and the Language of the Law, as San Diego Legal Studies Paper No. 17-262. Here is the abstract.

There has been a long-standing debate over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence. This article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like Letters of Marque and Reprisal, that are patently technical, and terms, like good behavior, that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such as those that tell readers when to understand a term in its legal sense or its ordinary meaning sense. The article shows how to determine whether a document is written in the language of the law. The most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law, because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, it is more likely to written in legal language, because that language allows more precision. The language of similar documents provides additional evidence. Since other constitutions at the time were written in the language of the law, that militates in favor of reading the Constitution in that same language. The article supplies strong evidence that the Constitution is written in the language of the law. The article is the first to count the legal terms in the Constitution and approximates them at a hundred. Moreover, the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues. The Constitution’s legal language has important theoretical and practical significance. Theoretically, it shows that that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.

Download the article from SSRN at the link.

Call for Papers: "The People": Democracy, Populism, and the Constituent Popular Sovereign, June 21-23, 2017, Helsinki @PanuMinkkinen

Via @PanuMinkkinen, Professor of Jurisprudence, Faculty of Law, University of Helsinki

Call for Papers: ’The People’: Democracy, Populism, and the Constituent Popular Sovereign

21-23 June 2017, Helsinki (Finland)

Confirmed keynote speakers: Christa Davis Acampora (Hunter College, CUNY, USA), Benjamin Arditi (UNAM, Mexico), Bonnie Honig (Brown University, USA), and Hans Lindahl (Tilburg University, the Netherlands).

Recent social and political developments, including the Brexit referendum result and its xenophobic aftermath in the UK, the presidential elections in the United States, anti-democratic state policies in Hungary and Poland, as well as the political climate of upcoming elections in France and the Netherlands, have all underlined the topicality of the relationship between democracy and popular sovereignty. What is ‘the people’? What is the popular sovereignty that supposedly underlies all democratic regimes? When does democratic politics become ‘populistic’? Is ‘populistic’ politics always necessarily anti-democratic, and if so, why? Is a ‘progressive’ variant of populism possible? What are the limits of popular self-determination in a democracy? Can the constituent popular sovereign ‘do no wrong’? How does one oppose anti-democratic populistic tendencies with democratic means? Is democracy a value that can even justify exceptional means?

The symposium, taking place on 21-23 June 2017 in Helsinki, and organized by the Political Constitutional Theory (PolCon) network (http://blogs.helsinki.fi/politicalconstitutionaltheory/), will address these and related questions on the troubled relationship between democracy and ‘the people’ from a variety of angles. Proposals for papers are due 24 February 2017.

For more detailed information, please visit:
http://blogs.helsinki.fi/politicalconstitutionaltheory/thepeople/call-for-papers/ 

Green on Constitutional Truthmakers @olemisslaw

Christopher R. Green, University of Mississippi School of Law, has published Constitutional Truthmakers. Here is the abstract.

Many disputes in constitutional theory — in particular, disputes over forms of originalism and non-originalism — would be far clearer if they employed two distinctions that philosophers have drawn repeatedly in dealing with the nature of reality. First, we should distinguish constitutional epistemology from constitutional ontology. Constitutional epistemology (together with epistemically-freighted constitutional pragmatics) tells us who decides questions of constitutional interpretation: the distribution of interpretive authority between government and citizens, between and within branches of government, and for all of these interpreters, the distribution of such authority over time. It tells us what burdens of proof govern different interpreters’ determinations, and what sorts of evidence might satisfy those burdens. Akin to the Erie/Hanna regime, such “procedural” matters of constitutional epistemology and pragmatics could be changed radically even if the underlying “substance” of constitutional interpretation — what makes claims about the Constitution true or false — stays the same, and vice-versa. Attention to this epistemic-ontological distinction undermines or complicates recent arguments against originalism by Richard Fallon, Daniel Farber, Martin Flaherty, Helen Irving, Andrew Koppelman, Suzanna Sherry, and David Strauss, as well as a classic argument by Justice Jackson, but also raises trouble for arguments for originalism by the late Justice Scalia and Lawrence Solum. Epistemic vices of either a fixed-meaning or a common-law Constitution cannot undermine a constitutional theory’s ontological virtue — if it possesses it — of accurately representing our actual Constitution, and epistemic virtues cannot compensate for the ontological vice of wrongly identifying the Constitution itself. Second, as a precursor to assessing constitutional theories’ ontological virtues, we should classify forms of originalism or non-originalism based on their constitutional truthmakers. Do they have any at all? Do they have more than one? Pragmatists deny the existence of any truthmaker external to the practice of judging, while pluralists point to more than one. Truthmakerless constitutional theories like those of Judge Posner, Eric Segall or the early Felix Frankfurter cannot vindicate “wrong the day it was decided” (WTDIWD) data from the Court itself, and irreducibly plural constitutional theories like those of Philip Bobbitt cannot vindicate such data in cases where constitutional modes conflict. An integrated constitutional truthmaker like that proposed by the early Richard Fallon, which sets out a criterion for picking winning and losing constitutional arguments then different modes clash, has a distinct ontological advantage over pragmatist or irreducibly plural constitutional theories. Even a theory merely positing an unknown proper commensuration of conflicting constitutional arguments into answers for particular cases — that is, a reducible pluralism — can vindicate WTDIWD data in a way pragmatism and Bobbitism cannot. Single-truthmaker forms of living constitutionalism are thus ontologically preferable to no-truthmaker or multiple-truthmaker forms. We can then ask (as I do and will do in earlier and future work) whether that single truthmaker matches, or does not match, the “this Constitution” to which Article VI refers, and to which, on a naïve view of our current practices, current officeholders swear an oath.

Download the article from SSRN at the link.

Wheatle @seshaunawheatle on Bounded Cosmopolitanism and a Constitutional Common Law

Se-shauna Wheatle, Durham Law School, is publishing Bounded Cosmopolitanism and a Constitutional Common Law, forthcoming in the Journal of Comparative Law. Here is the abstract.

There remains deep uncertainty regarding the growing transnational nature and scope of law. This uncertainty is in part answered by, but also fuelled by, current cosmopolitan theories. Such theories -- including Jeremy Waldron’s conception of a ‘ius gentium’ as a body of principles shared by the legal world, and Neil Walker’s articulation of ‘global law’ -- are decidedly cosmopolitan in nature by articulating legal orders and systems that see the individual as part of a shared human community. While these theories make valuable contributions to legal studies, they have overreached by asserting an extensive level of transnational consensus, consensus which is not fully represented in current transnational dialogue. What is needed is a framework that balances the cosmopolitan impulse with awareness of the current experience of transnational law, and the historical and cultural limitations on transnational dialogue. With this contextual background in mind, I propose the idea of ‘bounded cosmopolitanism’, which harnesses the power of cosmopolitanism but restrains the cosmopolitan impulse through awareness of the interplay between convergence and divergence that is central to the experience of transnational law. As an instance of bounded cosmopolitanism, the article advances a cosmopolitan common law constitution, which embodies the convergent influence of common law methods and principles with the divergent elements of specific constitutional design in individual common law jurisdictions.

The full text is not available from SSRN.

Crocker on Dystopian Constitutionalism

Thomas P. Crocker, University of South Carolina School of Law, is publishing Dystopian Constitutionalism in volume 18 of the University of Pennsylvania Journal of Constitutional Law (2015). Here is the abstract.

This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, what differentiates dystopian constitutionalism is that it does not purport to provide a comprehensive way of understanding the Constitution. Rather, in the spirit of what Judith Shklar calls the “liberalism of fear,” it provides a way of organizing constitutional argumentation in opposition to states of government Americans might wish to avoid. It helps in understanding how to better implement constitutional principles into workable rules, not by holding up an ideal, but by urging us away from the negative alternative. In this respect, dystopian constitutionalism is focused less on obtaining an ideal state of governance than on achieving a workable system of self-governance that would avoid descent into tyranny. It has been particularly salient in criminal procedure and First Amendment cases, on which this article focuses. As a mode of argumentation, dystopian constitutional analysis uses consequence avoidance arguments often taking the form of slippery slopes. It also makes use of negative exemplars and legal archetypes — the latter first developed by Jeremy Waldron as a way of organizing our understanding of more holistic bodies of law. This article also explores how consequence avoidance arguments can be turned on their head by a different ordering of priorities. Practices once thought undesirable can lose their taint, a shift reflected in the relationship between the logical argument forms of modus tollens and modus ponens. This shift in argument form is exemplified, as this article discusses, in the contrast between the Fourth Amendment reasoning found in the 1948 case Johnson v. United States and the 2011 case Kentucky v. King. Beyond describing how dystopian analysis works, I argue normatively that there are a number of positive effects in using a dystopian analysis. One of the chief virtues of which is to encourage more holistic analysis of legal rules, which has particular salience in Fourth Amendment cases. Moreover, holistic consideration of constitutional values in service of consequence avoidance arguments does not render dystopian constitutionalism into a version of irrational “tyrranaphobia,” as some scholars have argued. Rather, methodologically it is about keeping in mind negative boundaries, and providing a grammar for talking about how to construct rules that steer us away from negative consequences. Substantively, it is about affirming national agreements on core values and commitments comprising a constitutional identity. When agreement proves elusive, dystopian constitutional analysis supplements other constitutional arguments to facilitate analysis of the more comprehensive constitutional fidelity and fit we might expect from a proposed decision.

Download the article from SSRN at the link.

Ekins on the Constitution as an Object of Interpretation

Richard Ekins, University of Oxford Faculty of Law, is publishing Objects of Interpretation in Constitutional Commentary (forthcoming). Here is the abstract.

This paper argues that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. The paper develops these claims by way of a critique of Cass Sunstein’s recent argument that there is nothing that interpretation just is, contending that he misunderstands the way that intention works in language use in general and that the alternatives to intentionalism that he outlines each fail. The radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the paper considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.

The full text is not available for download from SSRN.

Hodas on the Laws of Science, Constitutional Law, and the Rule of Law

David Hodas, Widener University, Delaware Law School, is publishing The Laws of Science, Constitutional Law, and the Rule of Law in volume 22 of the Widener Law Review (2015). Here is the abstract.

This article seeks to answer a basic question: Do the Declaration of Independence and the Constitution require lawmakers and judges to adhere to the fundamental laws of science? I think, as you will see, that Thomas Jefferson, John Adams, Benjamin Franklin, and James Madison would unhesitatingly say yes. Can our society and system of government and the rule of law be stable, successful, and just without adherence to the fundamental principles of nature revealed by science? I suggest that our history has shown it cannot be and that this question is as relevant today as when the Constitution was drafted in 1787. This article examines whether governmental decisions that ignore the laws of science and scientific fact are unconstitutional.

Download the article from SSRN at the link.

New Journal Constitutional Studies Publishes First Issue, Issues CFP For Third Issue

Constitutional Studies, housed at the University of Wisconsin, Madison, has published its first issue and has issued a CFP for its third issue. Authors of articles in the first issue include articles by Mark A. Graber, Ethan Alexander-Davey, Clement Fatovic, Thomas M. Keck, and Zoltan Szente. I will try to upload a PDF of the issue.