Law & Humanities Blog |
- Resistance To Law
- Federalist 10: Its Interpretation and Construction
- An Introduction To Law and Race Studies
| Posted: 21 Jun 2011 08:07 AM PDT Richard A. Brisbin, West Virginia University, has published Resistance to Legality at 6 Annual Review of Law and Social Science 25 (2010). Here is the abstract. The contingency of legality creates opportunities for individuals and collective associations to oppose its norms and requirements. This article examines the context and dimensions of resistance or opposition to legality, why resistance occurs, the strategies and tactics used to conduct resistance, the outcomes of acts of resistance, and whether resistance is a meaningful social and political activity.The full text is not available from SSRN.   |
| Federalist 10: Its Interpretation and Construction Posted: 21 Jun 2011 07:49 AM PDT Ian C. Bartrum, Drake Law School & Yale Law School, is publishing Constructing the Constitutional Canon: The Metonymic Evolution of Federalist 10 in Constitutional Commentary. Here is the abstract. This paper is part of [sic] larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called "interpretation/construction distinction." I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the "easy" cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a "true and correct" model of constitutional theory.Download the article from SSRN at the link. First, I disagree that there are such things as "linguistic facts" that we might discover as part of an initial search for a clause's bare "semantic meaning." A great many sentences make assertions about the world whose correspondence cannot be verified as an empirical matter. |
This is most obviously true when we make vague assertions such as "John is bald." This assertion may or may not correspond with the world; it depends upon the linguistic rules and convention surrounding our particular use of the word "bald" - it depends on what we think counts as "baldness." One of the ways that we might make arguments for or against John's baldness is by reference to paradigm cases of baldness and not-baldness; and in this essay I argue that this is analogous to the ways that we use canonical texts in our constitutional argument. But the important point for purposes of the interpretation/construction distinction is that "sentence meaning" depends upon the rules of proper linguistic usage, not the discovery of linguistic facts.
Second, in the easy cases - such as the age requirement for the Presidency - it may make little difference whether the phrase "35 years old" denotes a factual state of affairs or refers us to linguistic rules. In other words, there is such universal agreement about the interpretive rules in these cases that they may serve as something like "facts." In such cases, it is possible to engage in the two-step kind of analysis that the interpretation/construction distinction suggests: We can agree upon a fairly objective interpretive referent, and then build out applicable legal rules. But in those cases where there is not broad agreement on the proper linguistic rules - such as the proper use of "equal protection" - it becomes quite apparent that there is no "linguistic fact" waiting for us to discover. Instead, our "interpretation" in these cases will depend upon what we can agree on as legitimate or proper uses of the phrase. Thus, in the cases of most concern, I think the underlying conceptual flaws impose a great limitation on the ultimate utility of the interpretation/construction distinction.
As I have said, in constitutional practice part of the argument about meaning will refer to paradigm cases of "equal protection" and "not-equal protection." In our practice, I contend that canonical texts often serve as some these paradigm cases. But the symbolic meaning of these texts evolves also over time within our argumentative usage. And as the meaning of these texts change, so will the interpretive conventions surrounding constitutional language. Here I present the evolution of Federalist 10 as an illustrative example.
Second, in the easy cases - such as the age requirement for the Presidency - it may make little difference whether the phrase "35 years old" denotes a factual state of affairs or refers us to linguistic rules. In other words, there is such universal agreement about the interpretive rules in these cases that they may serve as something like "facts." In such cases, it is possible to engage in the two-step kind of analysis that the interpretation/construction distinction suggests: We can agree upon a fairly objective interpretive referent, and then build out applicable legal rules. But in those cases where there is not broad agreement on the proper linguistic rules - such as the proper use of "equal protection" - it becomes quite apparent that there is no "linguistic fact" waiting for us to discover. Instead, our "interpretation" in these cases will depend upon what we can agree on as legitimate or proper uses of the phrase. Thus, in the cases of most concern, I think the underlying conceptual flaws impose a great limitation on the ultimate utility of the interpretation/construction distinction.
As I have said, in constitutional practice part of the argument about meaning will refer to paradigm cases of "equal protection" and "not-equal protection." In our practice, I contend that canonical texts often serve as some these paradigm cases. But the symbolic meaning of these texts evolves also over time within our argumentative usage. And as the meaning of these texts change, so will the interpretive conventions surrounding constitutional language. Here I present the evolution of Federalist 10 as an illustrative example.
An Introduction To Law and Race Studies
Posted: 21 Jun 2011 07:46 AM PDT
Laura E. Gomez, University of New Mexico, has published Understanding Law and Race as Mutually Constitutive: An Invitation to Explore an Emerging Field in 6 Annual Review of Law and Social Science 487 (2010). Here is the abstract.
This article argues that law and race coconstruct each other. The idea that race is socially constructed has become widely accepted, and studies increasingly have explored law's role in shaping racial categories, racial conflict, racial ideology, and the racial order. Fewer studies have utilized a well-developed concept of race to examine how it has affected legislation, legal processes, legal ideology, and so forth. To explore how law and race are mutually constitutive, I draw on examples from a dozen monographs (all but one published since 1999) that are in-depth case studies of how law and race have interacted in diverse geographical regions over the past 400years. Cumulatively, they present new insights about how law and race are coconstructed to reproduce and transform racial inequality in society. They represent an emerging genre of sociolegal studies that reveals how law and race shape each other in an ongoing, dialectic process.The full text is not available from SSRN.
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