Tarar and Tarar on Constitutional Ghosts: Myth, Metaphysics, and the Afterlife of the Framers

Jalal Tarar, Independent Scholar, and Shahbaz Tara, University of London, have published Constitutional Ghosts: Myth, Metaphysics, and the Afterlife of the Framers. Here is the abstract.

This paper examines the paradoxical role of the constitutional framer in judicial reasoning. While courts invoke the figure of the framer to legitimise constitutional interpretation, they systematically exclude actual framers from interpretive authority. The framer is constructed as a mythic origin, sacralised but silenced, a legitimating figure whose historical presence is evoked to anchor doctrine, yet whose interpretive claims are denied to preserve judicial autonomy. Drawing on hermeneutics, political theology, and semiotics, the paper argues that this exclusion is not a contradiction but a structural necessity of constitutional democracy. Through case studies from the United States, Pakistan, India, Iraq, and South Africa, the paper illustrates how figures such as James Madison, Abdul Hafeez Pirzada, and Albie Sachs are invoked as symbols but denied operative authority. The analysis critiques originalism by demonstrating that framers often disagreed with each other, evolved ideologically, or repudiated their own positions, rendering authorial intent an unstable foundation for legal meaning. The judiciary's refusal to yield interpretive control is shown to be essential for the law's adaptability and coherence over time. Constitutional meaning is not inherited but constructed; the framer functions as a judicial artefact, invoked rhetorically but displaced institutionally. This performative logic reveals that constitutional law sustains itself not by preserving the framer's voice but by ritualising his absence. The framer, in this sense, is a constitutional ghost, essential to the mythos of legitimacy, yet exiled from the terrain of interpretation.

Download the article from SSRN at the link.

Tsai and Ziegler on Abortion Politics and the Rise of Movement Jurists @robertltsai @BU_Law @maryrziegler @UCDavisLaw

Robert L. Tsai, Boston University School of Law, and Mary Ziegler, University of California, Davis, School of Law, are publishing Abortion Politics and the Rise of Movement Jurists in volume 57 of the UC Davis Law Review. Here is the abstract.

This article employs the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena. In this article, we focus on one type of judge that is ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure—who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives—has emerged as a visible supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists. Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology—as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by ideology or party loyalty. We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court.

Download the article from SSRN at the link.

Wright on the Logic of History and Tradition in Constitutional Rights Cases @IUMcKinney

R. George Wright, Indiana University School of Law, has published On the Logic of History and Tradition in Constitutional Rights Cases. Here is the abstract.

Questions of judicial reliance on history and tradition have been prompted by several recent Supreme Court cases, in which the Court has not merely emphasized, but absolutized, history and tradition. Absolutism in this sense refers to judicial language evidently requiring the relevant party to show, in every case, sufficient validation for their position in history and tradition. The requirement for such a showing of historical and traditional support is thus apparently exceptionless, and in that sense absolute. It is on this absolute, or exceptionless, requirement of sufficient support for a party’s claim, specifically in history and tradition, that this Article focuses. Immediately below, the Article examines the role of history and tradition in the Court’s most recent case law, successively addressing the law of substantive due process rights; the law of gun ownership and related rights-claims under the Second Amendment; the scope, limits, and requirements of the Establishment Clause; and some important dimensions of free speech rights. The Article then addresses broader issues of the proper role and limits of attempts to absolutize requirements of history and tradition in the context of rights-claims, including claims for rights that are themselves thought to be absolute and exceptionless.

Download the article from SSRN at the link.

Tobia, Slocum, and Nourse on Progressive Textualism @kevin_tobia @vicnourse @GeorgetownLJ

Kevin Tobia, Georgetown University Law Center; Georgetown University, Department of Philosophy, Brian G. Slocum, University of the Pacific, McGeorge School of Law, and Victoria Nourse, Georgetown University Law Center,are publishing Progressive Textualism in volume 110 of the Georgetown Law Journal. Here is the abstract.

Textualism is now the Court’s lingua franca. In response, some have proposed a “progressive textualism,” defined by the use of traditional textualist methods to reach politically progressive results. This Article explores a different kind of “progressive textualism.” Rather than starting with the desired policy outcome—politically progressive or conservative—we begin from one of modern textualism’s central values: A commitment to “democratic” interpretation. As Justice Barrett argues, this commitment views textualists as “agents of the people” who “approach language from the perspective of an ordinary English speaker.” Textualists thereby claim to promote democracy by interpreting law consistently with what it communicates to the ordinary public. However, recent empirical studies reveal discrepancies between textualist interpretive commitments and how ordinary people understand legal texts. These discrepancies undermine claims that textualists’ methodology is committed to democratic interpretation. A textualism centered on democratic interpretation would be methodologically more progressive if it centered facts rather than fictions about how ordinary people interpret language. It would recognize that people understand legal language in light of linguistic “(co)text” and “(con)text,” and sometimes nonliterally; they often understand ambiguous terms in law to have legal, not ordinary, meanings; and their understanding of law is informed by its apparent purpose and sometimes by interpretive rules that are conventionally justified on normative grounds. In contrast, current textualism is often methodologically regressive, crafting a fictional “ordinary person” more closely connected to ideological policy goals than facts about ordinary language comprehension.

Download the article from SSRN at the link.

Lloyd on Why Originalism Cannot Work: Lessons From Logic, Scripture, and Art @LloydEsq

Harold Anthony Lloyd, Wake Forest School of Law, has published Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art. Here is the abstract.

Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It’s hard to see how such Originalism withstands scrutiny. First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences’ meaning prevails). Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus? Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon what the speaker meant by “planet.” (The same applies to the inclusion or exclusion of Pluto had the speaker used the word “planet” after the discovery of Pluto but before its exclusion by current science.) Unlike the “reasonable” reader of Gorsuch’s Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless. Fourth, to the extent a judge is principally “constrained” by a text or texts (as he may determine), by dictionaries that he chooses, and by “history” as the judge understands it, isn’t judicial activism encouraged rather than restrained? Talk of a “reasonable” reader masks the fact that there can be multiple “reasonable” conclusions of what a reasonable or unreasonable speaker meant. Is a judge not therefore left to pick definitions and applications of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames, and their terms are subject to multiple definitions therefore raising the very same questions just raised above. Finally, such Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as “Landscape with the Fall of Icarus” often attributed to Bruegel and which inspired such great ekphrasis as Auden’s “Musée Des Beaux Arts”). These further failures underscore the dysfunction of Originalism as described by Gorsuch above.

Download the article from SSRN at the link.

van Domselaar on The Perceptive Judge

Iris van Domselaar, University of Amsterdam, has published The Perceptive Judge. Here is the abstract.

Up until today the way judges perceive has received little attention in legal discourse. Adjudication is most often conceptualized as a practice in which judges apply rules and principles. The focus has predominantly been on the actual decisions judges take, the underlying justificatory rules and principles and the meaning of the decision for the legal system. This paper by contrast puts judicial perception at the centre of adjudication. It offers a philosophical account of judicial perception that understands it as a special ethical, character dependent - skill that a judge needs in order to adequately cope with the case he is confronted with. In this account ‘thick (legal) concepts’ play a vital role. Throughout the text Ian McEwan’s novel The Children Act is used as illustrative source.

Download the article from SSRN at the link.

Allen on Doctrine as a Disruptive Practice.

Jessie Allen, University of Pittsburgh School of Law, has published Doctrine as a Disruptive Practice as University of Pittsburgh Legal Studies Research Paper No. 2016-21. Here is the abstract.

This article proposes a different way to think about legal reasoning that focuses on its psychological effects rather than its ability to identify legal outcomes. Legal doctrine, such as statutes and case law, is generally thought to contribute to legal decision making only to the extent that it determines legal outcomes, or at least narrows the range of justifiable outcomes. Yet in many cases that come to court, the available authorities are acknowledged to be indeterminate. Over the course of decades, various theories and methods have been proposed to justify judges’ continued reliance on doctrine. Most of this literature focuses on doctrine’s capacity to direct substantive outcomes and ignores other benefits that doctrinal reasoning might provide. Recently, however, some empirical studies have begun to consider the potential cognitive effects of judges’ engagement with doctrine. This article offers another model for how doctrine might influence judges’ perceptions. Drawing on performance theory and recent psychological studies of readers, I argue that judges’ disciplined engagement with formal legal doctrine might have self-disrupting effects akin to those performers experience when they deliberately alter their physical and vocal habits. Investigating doctrine’s disruptive potential might help explain why judges continue to reason doctrinally despite doctrinal indeterminacy. The model of self-disruptive doctrine cannot explain how judges ultimately resolve, or should resolve, legal questions. But disruptive doctrinal effects would be valuable in and of themselves as a way for legal decision makers to set aside their usual subjective biases.

Download the article from SSRN at the link.

J. A. Jeremy Telman on Originalism

D. A. Jeremy Telman, Valparaiso University Law School, is publishing Originalism: A Thing Worth Doing . . . in volume 42 of Ohio Northern University Law Review (2016). Here is the abstract.

Originalism in constitutional interpretation continues to grow in its reach, its sophistication, its practical applicability and its popular support. Although originalism first developed in the 1960s as a doctrine of judicial modesty, originalist judges are now far more confident in their ability to discern the Constitution’s original meaning and thus willing to strike down legislative enactments inconsistent with that meaning. Two aphorisms by the leading practitioners of originalism sum up originalism’s journey. Justice Scalia, writing in the 1980s, conceded that originalism was merely “the lesser evil” and consoled himself with the Chestertonian dictum that “a thing worth doing is worth doing badly.” Justice Thomas places fewer limitations on his own belief in originalist method and adopts as his motto “any job worth doing is worth doing right.” The challenge for contemporary originalism is that it is not the sort of thing that G.K. Chesterton thought was worth doing badly, but it also may be the sort of thing that is very difficult to do right.

Download the article from SSRN at the link.

Interpretative Rules and the Canadian Charter

Benjamin J. Oliphant, University of Toronto, is publishing Taking Purposes Seriously: The Purposive Scope and Textual Bounds of Interpretation Under the Canadian Charter of Rights and Freedoms in a slightly altered form in the University of Toronto Law Journal. Here is the abstract.

In order for judicial review under the constitution to be compatible (sic) the rule of law, there must be some tangible constraints on judicial interpretation. The author puts forward an account of interpretation under the Charter of Rights and Freedoms that views both the text and purposes underlying it as meaningful constraints on the range of meanings available to interpreters. In particular, the author seeks to demonstrate that ‘purposivism’ as a method of interpretation can, and frequently has in the Canadian context, operated to narrow the scope of vague and under-determinate constitutional guarantees. The author criticizes more expansive forms of purposivism, which seek not only to inform the meaning of the words included in the Charter, but also to give those purposes said to animate the guarantees independent legal force. This point is illustrated with particular reference to the Supreme Court of Canada’s right to vote jurisprudence. The author concludes that these more aggressive approaches to purposivism risk elevating judicially-ascertained purposes to the same legal status as the language enacted into law, and undermine the defence frequently offered in support of the legitimacy of judicial review under the Charter – that it stems from the deliberate choices of the people. 

Download the draft of the article from SSRN at the link.