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Book part
Publication date: 28 March 2022

Linda Ross Meyer

This chapter compares a ‘deific decree’ insanity case with constitutional originalism debates as a way to understand the boundaries of the legal person and the nature of law. The

Abstract

This chapter compares a ‘deific decree’ insanity case with constitutional originalism debates as a way to understand the boundaries of the legal person and the nature of law. The criminal defendant who claims innocence on the ground that ‘God told me to’ does not embody a conflict between law and religion, but a conflict between law’s demand for intersubjectivity and the subjectivity of a ‘higher truth known only to me’. In the same way, the originalist interpreter of the constitution rejects precedent in favour of a higher truth that need not be ‘like’ anything before. One approach to broaching this conflict between law and revelation is to understand law’s domain as temporal and incomplete – to imagine a humble rather than absolute law. On this view, the person is also not ‘absolute subjectivity’, but is compelled by legal fidelity to treat like alike and therefore under an obligation to imagine a ‘me’ as ‘we’. Or, to put it another way, to bring the person and the law into relationship is to reject a ‘revelatory’ interpretation of ‘original’ or ‘divine’ law in favour of an incompletely intersubjective common law that links me to we through customs and time. At the same time, by acknowledging law’s incompleteness, we can see unreasonable revelation sometimes as a possibility and not always as an insanity.

Book part
Publication date: 6 May 2008

George Thomas

Popular constitutionalists seek to recover the popular sovereignty foundations of American constitutionalism, bringing the people in as active participants in the constitutional…

Abstract

Popular constitutionalists seek to recover the popular sovereignty foundations of American constitutionalism, bringing the people in as active participants in the constitutional enterprise as they create and refashion the Constitution by “majoritarian and populist mechanisms” (Amar, 1995, p. 89). The result is to recover an understanding, in FDR's words, of constitution as a “layman's document, not a lawyer's contract” (Kramer, 2004, p. 207). This understanding has deep roots in American constitutionalism, tracing its lineage back to the founding and, as popular constitutionalists insist, finds powerful expression in the likes of The Federalist and Abraham Lincoln (Ackerman, 1991; Tushnet, 1998). In exercising popular sovereignty, the people founded the Constitution, but they did not simply retreat from the trajectory of constitutional development. Rather, as Bruce Ackerman argues, since the Constitution of 1787 the people have spoken in a manner that has re-founded the Constitution giving us a “multiple origins originalism” (Kersch, 2006a, p. 801; see also Amar, 1998 and 2005). In turning to founding era thought and the notion of constitutional foundations, popular constitutionalists like Ackerman and Amar make common cause with conservatives who turn to original intent, but then they seek to synthesize this understanding with democratic expressions of popular will by emphasizing both formal and informal constitutional change, giving us layered “foundings,” and a more complex version of “living constitutionalism.” Such constitutional change, however, can only legitimately come from an authentic expression of “We the People.”

Details

Special Issue Constitutional Politics in a Conservative Era
Type: Book
ISBN: 978-0-7623-1486-7

Book part
Publication date: 29 February 2008

Teresa Godwin Phelps

Over the past few decades, the law and literature movement has fragmented, expanded, and evolved to include fields as diverse as hermeneutics and narrative theory. This chapter…

Abstract

Over the past few decades, the law and literature movement has fragmented, expanded, and evolved to include fields as diverse as hermeneutics and narrative theory. This chapter discusses the developments in and contributions of these two strains of the law and literature movement and argues that each respectively provides us with important ways of seeing acts of interpretation and the use of stories in the legal culture. Hermeneutics provides an understanding of the phenomenon of interpretation that avoids the trap of choosing originalism or postmodernism as the accepted method of interpreting legal texts. Narrative theory provides tools for understanding and critiquing the burgeoning use of stories in the law.

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Special Issue Law and Literature Reconsidered
Type: Book
ISBN: 978-1-84950-561-1

Abstract

Details

Journal of Documentation, vol. 76 no. 3
Type: Research Article
ISSN: 0022-0418

Expert briefing
Publication date: 27 October 2020

Absent the successful restructuring of the institution of the Supreme Court -- which would be major change and is therefore considered unlikely -- seating Barrett will solidify a…

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DOI: 10.1108/OXAN-DB257127

ISSN: 2633-304X

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Topical
Book part
Publication date: 6 May 2008

Ronald Kahn

Legalists and social scientists have not been able to explain the expansion of gay rights in a conservative age because they refuse to respect the special qualities of judicial…

Abstract

Legalists and social scientists have not been able to explain the expansion of gay rights in a conservative age because they refuse to respect the special qualities of judicial decision making. These qualities require the Supreme Court to look simultaneously at the past, present, and future, and, most importantly, to determine questions of individual rights through a consideration of how citizens are to live under a continuing rights regime. Unless scholars understand how and why Supreme Court decision making differs from that of more directly politically accountable institutions we can expect no greater success in explaining or predicting individual rights in the future.

Details

Special Issue Constitutional Politics in a Conservative Era
Type: Book
ISBN: 978-0-7623-1486-7

Book part
Publication date: 20 August 2012

Sonu Bedi

Rights constitute a familiar feature of the liberal discourse of judging. This chapter seeks to recast this discourse away from the language of rights by considering two cases…

Abstract

Rights constitute a familiar feature of the liberal discourse of judging. This chapter seeks to recast this discourse away from the language of rights by considering two cases where liberals often invoke it: abortion and same-sex marriage. I argue that the presence of rights in American constitutional discourse exacerbates the counter-majoritarian nature of judicial review. We do better to recast the language of judging from an emphasis on protecting rights to an emphasis on making sure that the demos acts on publicly justifiable reasons. In doing so, I proffer a novel analysis of liberal theory's extant commitment to public reason, one that conceptualizes public reason as representing the scope of state power.

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Special Issue: The Discourse of Judging
Type: Book
ISBN: 978-1-78052-871-7

Book part
Publication date: 9 April 2003

Matthew J Moore

The author argues that the familiar distinction between interpretive and non-interpretive theories of constitutional interpretation obscures another important distinction: that…

Abstract

The author argues that the familiar distinction between interpretive and non-interpretive theories of constitutional interpretation obscures another important distinction: that between hermeneutically open and hermeneutically closed theories. Closed theories seek resolution to constitutional conflict by employing methods of interpretation that are intuitively persuasive. Open theories deny that such methods are always available, and seek resolution of conflict through a combination of legal, political, and social means. The author argues that closed theories have failed to live up to their implicit promise of self-justification, and examines the practice of constitutional interpretation in Canada and Australia to support this view.

Details

Studies in Law, Politics and Society
Type: Book
ISBN: 978-1-84950-209-2

Executive summary
Publication date: 1 February 2017

UNITED STATES: Gorsuch will retrench regulatory power

Details

DOI: 10.1108/OXAN-ES217692

ISSN: 2633-304X

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Geographic
Topical
Book part
Publication date: 29 April 2013

Amanda Hollis-Brusky

This chapter examines the influence of the Federalist Society for Law and Public Policy on some of the most important Supreme Court decisions of the past three decades. Mobilizing…

Abstract

This chapter examines the influence of the Federalist Society for Law and Public Policy on some of the most important Supreme Court decisions of the past three decades. Mobilizing the epistemic community framework, it demonstrates how network members, acting as amici curiae, litigators, academics, and judges worked to transmit intellectual capital to Supreme Court decision makers in 12 federalism and separation of powers cases decided between 1983 and 2001. It finds that Federalist Society members were most successful in diffusing ideas into Supreme Court opinions in cases where doctrinal distance was greatest; that is, cases where the Supreme Court moved the farthest from its established constitutional framework.

Details

Studies in Law, Politics, and Society
Type: Book
ISBN: 978-1-78190-620-0

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