Constitutional Crisis and Constitutional Rot

No one could accuse Donald Trump\u27s presidency of being boring. The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Because Donald Trump is very unpopular, and because he regularly does things that his opponents consider outrageous, his critics have begun to describe his actions as creating or precipitating a constitutional crisis, especially following his first executive order limiting entry into the United States, and again after his firing of FBI director James Comey

The Distribution of Political Faith

The original title of Constitutional Redemption—which my publisher prevailed on me not to use—was “Agreements with Hell.” The phrase comes from a famous statement of the abolitionist William Lloyd Garrison—himself drawing on the words of the prophet Isaiah—that the United States Constitution was “a covenant with death, and an agreement with hell.” By agreeing to protect slavery, the Framers had embedded evil in the constitutional system, and Garrison believed that the only remedy for this original sin of constitutionalism was to dissolve the Union, and for the North to secede from the South

The Hohfeldian Approach to Law and Semiotics

This Essay attempts to show some of the important connections between the Continental tradition of semiotics, American Legal Realism, and the Critical Legal Studies movement. Semiotics, the study of signs and systems of signification, was developed independently by two thinkers, the American philosopher Charles Sanders Peirce and the Swiss linguist Ferdinand de Saussure. Much of the literature in legal semiotics has followed the Peircian tradition, but ironically, its connections with progressive movements in American legal theory have not always been clear. This Essay offers an alternative way of uniting legal semiotics with legal theory in America. It argues that the line of inquiry begun by Saussure, and continued by the French structuralists and post-structuralists, is not only an especially fertile way of approaching the study of legal semiotics, but that this semiotics can be more readily adapted to understanding politics and ideology as they are expressed in and disguised in legal thought. For this reason, there is a very natural affinity between Saussure\u27s semiology, on the one hand, and the work of the legal realists and the modern Critical Legal Studies movement on the other

The Use that the Future Makes of the Past: John Marshall\u27s Greatness and its Lessons for Today\u27s Supreme Court Justices

John Marshall’s greatness rests on a relatively small number of Supreme Court opinions, of which the most famous are Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden. Beyond these are a number of less famous but also important cases, including his opinions in the Native American cases, Fletcher v. Peck, and Dartmouth College v. Woodward.What makes Marshall a great Justice? One feature is certainly his institutional role in making the U.S. Supreme Court much more important to American politics than it had been previously. That is a function, however, of the sorts of cases that were brought before the Court, and of the opinions he chose to write. Marshall was also important as an early intellectual leader of the Court, as opposed to being merely its Chief Justice. That, too, is a function of the opinions he wrote

Race and the Cycles of Constitutional Time

The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. The first is the rise and fall of regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal

Transcendental Deconstruction, Transcendent Justice

A meaningful encounter between two parties does not change only the weaker or the stronger party, but both at once. We should expect the same from any encounter between deconstruction and justice. It might be tempting for advocates of deconstruction to hope that deconstruction would offer new insights into problems of justice, or, more boldly, to assert that the question of justice can never be the same after the assimilation of deconstructive insights. But, as a deconstructionist myself, I am naturally skeptical of all such blanket pronouncements, even - or perhaps especially - pronouncements about the necessary utility and goodness of deconstructive practice. Instead, in true deconstructive fashion, I would rather examine how deconstructionists\u27 claims of what they are doing - which are often refused the name of theory or method - are uncannily altered by their encounter with questions of justice. In fact, as I hope to show, when deconstruction focuses on specific and concrete questions of justice, we will discover that deconstruction has always been something quite different from what most people thought it to be

Korematsu as the Tribute that Vice Pays to Virtue

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what thelaw regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they failed to actually utilize” strict scrutiny. “In each instance the Justices glossed over key facts before them, ignored pertinent information, and were, quite possibly, blinded by their own prejudices and precedents.

Framework Originalism and the Living Constitution

Original meaning originalism and living constitutionalism are compatible positions. In fact, they are two sides of the same coin. Although not all versions of these theories are compatible, the most intellectually sound versions of each theory are. Recognizing why they are compatible helps us understand how legitimate constitutional change occurs in the American constitutional system. The first Part of this Article offers a short summary of what I believe is the best account of original meaning originalism and what I regard as its central purpose: setting up a basic structure for government, making politics possible, and creating a framework for future constitutional construction