A Machine Made of Words: Our Incompletely Theorized Constitution

[Excerpt]”Many scholars have observed that the Constitution of the United States can be understood as an example of what Cass Sunstein calls an “incompletely theorized agreement.” The Constitution contains a number of extremely general terms, such as “liberty,” “necessary and proper,” and “due process.” The Framers of the Constitution, it is suggested, did not attempt to specify precisely how each of these principles would operate in every case. On this view, the Constitution is incompletely theorized in the sense of representing “a comfortable and even emphatic agreement on a general principle, accompanied by sharp disagreement about particular cases.” For example, the Framers presumably could have agreed on the value of liberty in the abstract but disagreed sharply on its application to slaves. There is, however, another sense in which the Constitution can be seen as an incompletely theorized agreement. This second sense has received less attention in the existing scholarship, perhaps because it appears to conflict with the first. According to this sense, the Constitution is remarkable for containing so little theory and so few statements of general principle. What the interpretations of the Constitution in the previous paragraph take to be statements of general principle are, on closer inspection, almost never merely statements of principle. Outside of its errata and signatures, the Constitution of 1787 consists of only two elements: the single, performative sentence of the Preamble and the series of commands and permissions that make up the body of the document. Neither of these elements offers abstract, theoretical statements of general principle. On the one hand, the performative Preamble is not, strictly speaking, a descriptive statement at all; it is a performative enactment of the will of “the People” ratifying the Constitution at conventions across the thirteen states. On the other hand, every clause in the body of the document, without exception, is constructed around either a “shall,” a “may,” or a “shall not.” In grammatical form and function, these clauses are not theoretical justifications or elaborations. They are highly pragmatic directives.

My Service Learning Experience

This presentation produced by Destiny Brazeal, student at Virginia Commonwealth University, reflects on her experience in a service-learning course

Bureaucracy and the U.S. Response to Mass Atrocity

The U.S. response to mass atrocity has followed a predictable pattern of disbelief, rationalization, evasion, and retrospective expressions of regret. The pattern is consistent enough that we should be skeptical of chalking up the United States’ failures solely to a shifting array of isolated historical contingencies, from post‐Vietnam fatigue in the case of the Khmer Rouge to the Clinton administration’s recoil against humanitarian interventions after Somalia. It is implausible to suggest that the United States would have acted to mitigate or end mass atrocities but for the specific historical contingencies that happen to accompany each outbreak of violence. This essay proposes a supplementary explanation for the United States’ history of failed responses to mass atrocity. The explanation is based on a widely accepted model of bureaucratic behavior, according to which bureaucracies follow standardized routines, bureaucrats operate according to a “logic of appropriateness” rather than a “logic of consequence,” and seemingly irrational results often follow when a bureaucracy is confronted with a problem for which it has no preset response. The essay concludes by endorsing the recent recommendation by Madeleine Albright and William Cohen of various bureaucratic reforms aimed at preventing genocide, including the establishment of a permanent Atrocities Prevention Committee

Between Description and Prescription: Law, Wittgenstein, and Constitutional Faith

The occasions on which ajudge or legal scholar has peered into the depths of the Constitution and found, to her surprise, that the Constitutionrequiresthe opposite ofher ideologicalpreferences, are extremely rare. Yetjudges andscholarscontinuetopresenttheirconclusionsastheproduct ofideologicallyneutralreasoning,while often criticizingthe ideologicalbiasin thereasoningoftheiropponents.A Wittgensteinianperspectiveonthenatureof legaldiscoursecanshed lighton thispuzzlinglypersistentstateofaffairs. Legal discourse, includingconstitutionalargument, is partly defined by the blending ofdescriptive reasoningabout what the law is with prescriptivereasoningabout what the law ought to be. To reach a legal conclusion based on a blend of descriptiveandprescriptivereasoning,andtophrasethis conclusion aspurely descriptive, as legal actors habitually do, is not to violate the rules of legal discourse, but to abide by them. Taking this conception of legal discourse as a starting point, the Article extends Sanford Levinson\u27s analogy between U.S. constitutionalism and religiousfaith. Just as we can distinguish at least three attitudes toward a religious belief-fundamentalism, atheism, and non- fundamentalistfaith-so we candistinguishatleast three analogousapproaches to legal and constitutionaldiscourse. Jack Balkin\u27s Constitutional Redemption illustrates the often neglected possibility of a constitutional faith without fundamentalism

Accessibility in the Basic Course: A Case for Retaining Pandemic Technology

This piece focuses on the potential of technologies adopted during the COVID-19 crisis to enhance accessibility for students with disabilities in the basic course. The pandemic disrupted traditional modes of teaching and learning and required basic course instructors to seek out technologies that could help meet the goals of a traditional classroom experience. This piece suggests that this spirit of flexibility with technology should be retained in traditional classrooms going forward, as it can benefit students with disabilities. First, Universal Design for Learning is discussed, including its emphasis on providing multiple options for learning and the guidelines it presents for creating more accessible classrooms. Then, discussion turns to two examples of technologies utilized during the pandemic that could be retained and deployed to offer a variety of learning options for students. Such options increase accessibility and benefit all students

Applying the theories of sustainable water aid

2010 Fall.Includes bibliographical references.A lack of accessibility to safe water has always been one of the greatest challenges to the rural developing world. This issue has resulted in the deaths of countless millions of people, as well as the underdevelopment of many nations. The developed world has always recognized the necessity of providing water aid to these developing nations. However, this water aid has had limited success in providing sustainable water solutions and in alleviating this crisis. Recognizing this lack of effectiveness, the theories of water aid and community development have been studied and scrutinized. This has resulted in great strides in the science of providing sustainable aid to developing nations. Yet, while much has been learned about the proper theories, little increase in success has been seen in the developing world. This study seeks to determine if one of the reasons for this lack of translated success is due to a lack of summarized and unified development principles. Therefore, this thesis attempts to collect a representative sample of literature on water aid and community development and develop a singular theory for implementing water aid. This developed procedure will serve as a step-by-step guideline that covers water aid from the community selection process to the necessity of following up with the community. This thesis will then apply this developed procedure in four communities and monitor the successes and failures. Based on this analysis, observations can be made on the viability of the new standard operating procedure. If successful, perhaps this plan could be utilized by aid organizations to provide replicable results. Additionally, observations can be made on whether a lack of collated development theories is one of the reasons for a lack of success amongst water aid. All this is done with the intention of furthering the progress of water aid, with the hope of provided greater lasting success in the developing world

Discrimination in the New Millennium: Terrorizing Middle-Easterners, Retraction of Civil Liberties, and the USA Patriot Act

Article published in the Michigan State University School of Law Student Scholarship Collection

A Functional Analysis of Televised U.S. Senate and Gubernatorial Campaign Debates

This study extended previous research on the Functional Theory of Political Campaign Discourse to investigate the nature of 21 U.S. Senate campaign debates and 15 gubernatorial debates from 1994 to 2006. Acclaims were more common than attacks or defenses in Senate (56%, 30%, 14%) and gubernatorial (68%, 30%, 2%) debates. Challengers attacked more and acclaimed less than incumbents in both groups of debates. Senate and gubernatorial incumbents used past deeds much more to acclaim than attack; challengers were prone to use past deeds to attack more than acclaim. There was no consistent effect of political party on functions of debates. The candidates focused more attention on policy than character in Senate (70%, 30%) and gubernatorial debates (73%, 27%). There was no difference in topics stressed by Democrats and Republicans, or incumbents and challengers, in either set of debates. These results are generally consistent with the findings from prior analyses of presidential debate