Comparative Constitutional Epics

This essay takes up Robert Cover’s account, in “Nomos and Narrative” of Constitutional Epics. Ranging across legal and literary texts including Toni Morrison’s Beloved, David Malouf’s An Imaginary Life, the Canadian Arar Commission Report, and Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, it concludes that what comparative study of Constitutions and their Epics might yield are brutal truths and the judgments of history, but also insights into how we might make of that unpromising material a nomos and a narrative of redemptive Constitutionalism

Comparative Constitutional Epics

This essay takes up Robert Cover’s account, in “Nomos and Narrative” of Constitutional Epics. Ranging across legal and literary texts including Toni Morrison’s Beloved, David Malouf’s An Imaginary Life, the Canadian Arar Commission Report, and Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, it concludes that what comparative study of Constitutions and their Epics might yield are brutal truths and the judgments of history, but also insights into how we might make of that unpromising material a nomos and a narrative of redemptive Constitutionalism

Cautionary Tales

“This is a review essay of Nan Seuffert’s Jurisprudence of National Identity: Kaleidoscopes of Imperialism and Globalisation from Aotearoa New Zealand (Ashgate, 2006), a critical, interdisciplinary study of the construction of national identity of Aotearoa New Zealand, which unearths the raced and gendered constitution of this postcolonial nation state.

``No One Does That Anymore : On Tushnet, Constitutions, and Others

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric. The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy their paradoxical and unacknowledged yearning for truth led them, after they “proved” legal science fallible, to social science, Tushnet’s always already failed search is for reason, or at least rationality, and for a type of modesty, at least as much as to justice claims as truth claims, in legal institutions, subjects, and discourses. Seeking to make visible the equally characteristic but less assertive orientation to “Others” that runs through Tushnet’s work, I use the native title and Chapter III judicial power jurisprudence of the Australian High Court to argue that Tushnet’s antijuridification scholarship might be read as a rhetorical gambit to shock left legalism out of what Judith Resnik describes as its “McCleskey problem,” its blindness to the local and particular evidence of legal institutions’ complicity in structural subordination. I conclude that a close reading of both Tushnet’s contributions to The Constitution in Wartime and his antijuridification jeremiad, Taking the Constitution Away from the Courts suggest his awareness of the need to confront the judges and the courts with their practical responsibility for maintaining constitutionalism. Engaging with Michael Seidman’s contribution to the symposium, I close the essay in suggesting that when, as in Mark Tushnet’s suggestive orientation to “the Other” just before the end of the essay “Defending Korematsu?,” he sees the Other face to face, he extends an invitation to read in his most recent constitutional law scholarship a resurgence of the orientation to Others that was the ground of his scholarly work, and thus to conclude that one does not have to move from the realm of hermeneutics to that of metaphor, as Seidman suggests is necessary, to identify his commitment to what is paradoxically a certain kind of “thick” constitutionalism, which conceives of it as something more than a bare practice for allocating political power in the nation-state, necessarily implying some ethical engagement between subjects who govern and those who are governed. That commitment is premised on a “thin constitution” that promises two things. First, that it might shield us and Others from at least the worst excesses of the violence of state tyranny. Second, it encodes what may be cynical rhetoric, aspirational constitutive national text, denial that is admission of the originary national pathology that eats out the nation’s core, or all of these things. That is, a commitment to equality in a nation with a government which Thurgood Marshall called “defective from the start,” founded on chattel slavery and persistently unwilling to address that inheritance from the Founders, a pervasive structural subordination of Others that imbricates its fiber yet

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, and ‘The Long War’”

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to the demands of “the long war,” or of “post-9/11 constitutionalism” on subjects serving on Western Anglophone common law constitutional courts. Drawing in particular on the anti-terrorism “control order” jurisprudence of Justice Sullivan of the English High Court and the Chapter III judicial power jurisprudence of the Australian High Court, in particular as the latter deals with what is in the U.S.A. euphemistically called the “preventive detention” of “sexually violent predators,” and the indefinite detention of “Islamic” asylum seekers in the aftermath of 9/11, the article concludes that Australian High Court Justice Michael Kirby’s recent jurisprudence of dissent instantiates a militant procedure of common law constitutional judging of others. Such a practice of judging is heteroglossic in Mikhail Bakhtin’s terms, like the accounts of an English constitutionalism that renders evidence obtained by torture inadmissible in the House of Lords’ seriatim opinions in A. [No. 2]. It is at once egalitarian and relational, situating the judge in a relationship of equals with those others on whom she passes judgment, rather than (following Oliver Feltham’s reading of Badiou) positing a judicial “identity-in-itself.” Robust accounts of Chapter III judicial power are examples of such an egalitarian and relational praxis. Militant constitutional judging resists what Feltham calls canalization, or capturing by the ordinary institutions of government: in the context of developing a theory of judging this might involve resisting claims like those made by Justice Scalia about the antidemocratic nature of the common law, or claims for finding judicially-recognizable norms in the actions of legislatures. Applying Badiou’s account of generic truth procedures, the Article concludes that jurisprudential truth procedures ought properly be located in the realms of love and of poetry. Badiou identifies the radical alterity within the loving subject that the encounter with the other in love produces. A practice of judging that is a generic truth procedure in the domain of love requires a radical precommitment to justice, the equality of judge and other, a “[belief] without knowing why,” or, as Peter Hallward glosses it “[f]idelity to love implies attestation before justification.” Poetry, paradigm of the literary genre, forcefully asserts the uncertainty of interpretation as the methodology of truth. The Article suggests that the transformative praxiological potential of Being and Event lies in the radical uncertainty that this philosophy both implies and depends on, its “anxiety, obsession and desire,” and that the necessary uncertainty of the subject as to the occurrence of an event is at the heart of what might be the virtues of Badiou’s account of being and event for a theory of post-9/11 constitutional judicial ontology and militant judging, given the manifest inadequacy of existing legal subjects and theories of judging and of constitutional law to deal with the exigencies of judging the other in post-9/11 constitutionalism. It concludes that texts suggesting what such an anxious, obsessed, desiring judicial subject, engaging in a principled way with “particular praxes which may be generic,” “slowly transform[ing] and supplement[ing] a historical situation” in which the common law constitutional judiciary finds itself, guided only by the “immanent imperatives” deriving from “the actual inquiries” made by “the operator of fidelity,” might be found in the increasingly anguished, and increasingly militant, jurisprudence of Michael Kirby, recognizing both the constitutional judge’s—and constitutionalism’s—other, and in judging those on whom he passes judgment his equals, inscribing equality, becoming equal to the event

Reviving the Subject of Law

This essay is an advanced draft of work that will be published in On Philosophy and American Law (Francis J. Mootz III ed. forthcoming, Cambridge U.P., 2009). This edited collection includes responses by a wide range of scholars working in legal theory to Mootz’s challenge to respond to the current state of American legal philosophy, using Karl Llewellyn’s 1934 University of Pennsylvania law review account of the emergence of legal realism as a prompt. Drawing on the author’s recent scholarship on the emergence of a distinctive and impoverished model of “common law” judging in the U.S. since the mid- c20th, and taking its lead from Duncan Kennedy’s suggestive argument that Realism failed to gain traction in Europe because of the obscene cast that the Third Reich gave to its project, the essay gives a critical account of the contemporary inheritances of the Realists’ account of law and their reliance on social science. It argues that interdisciplinary work in studies of law and the linguistic humanities and human sciences might be deployed in reviving the subject of law, generating a thick account of what law is and might be, of how its institutions, discourses, texts and subjects are formed in culture and history, and of how legal subjects reproduce culture and make history in their turn

``No One Does That Anymore : On Tushnet, Constitutions, and Others

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric. The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a science that would satisfy their paradoxical and unacknowledged yearning for truth led them, after they “proved” legal science fallible, to social science, Tushnet’s always already failed search is for reason, or at least rationality, and for a type of modesty, at least as much as to justice claims as truth claims, in legal institutions, subjects, and discourses. Seeking to make visible the equally characteristic but less assertive orientation to “Others” that runs through Tushnet’s work, I use the native title and Chapter III judicial power jurisprudence of the Australian High Court to argue that Tushnet’s antijuridification scholarship might be read as a rhetorical gambit to shock left legalism out of what Judith Resnik describes as its “McCleskey problem,” its blindness to the local and particular evidence of legal institutions’ complicity in structural subordination. I conclude that a close reading of both Tushnet’s contributions to The Constitution in Wartime and his antijuridification jeremiad, Taking the Constitution Away from the Courts suggest his awareness of the need to confront the judges and the courts with their practical responsibility for maintaining constitutionalism. Engaging with Michael Seidman’s contribution to the symposium, I close the essay in suggesting that when, as in Mark Tushnet’s suggestive orientation to “the Other” just before the end of the essay “Defending Korematsu?,” he sees the Other face to face, he extends an invitation to read in his most recent constitutional law scholarship a resurgence of the orientation to Others that was the ground of his scholarly work, and thus to conclude that one does not have to move from the realm of hermeneutics to that of metaphor, as Seidman suggests is necessary, to identify his commitment to what is paradoxically a certain kind of “thick” constitutionalism, which conceives of it as something more than a bare practice for allocating political power in the nation-state, necessarily implying some ethical engagement between subjects who govern and those who are governed. That commitment is premised on a “thin constitution” that promises two things. First, that it might shield us and Others from at least the worst excesses of the violence of state tyranny. Second, it encodes what may be cynical rhetoric, aspirational constitutive national text, denial that is admission of the originary national pathology that eats out the nation’s core, or all of these things. That is, a commitment to equality in a nation with a government which Thurgood Marshall called “defective from the start,” founded on chattel slavery and persistently unwilling to address that inheritance from the Founders, a pervasive structural subordination of Others that imbricates its fiber yet

What is Due to Others: Speaking and Signifying Subject(s) of Rape Law

Australian journalist Paul Sheehan\u27s representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in \u27Girls Like You\u27, like his representation of the rape survivors in that text, has much to tell us about the law\u27s production of rape law\u27s speaking and signifying subjects, “real rape” victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including \u27Girls Like You\u27, recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, to explore some persistent legal problems in responding to the social harm of rape. It concludes that recent work on biopolitical models of rape law, applied to the New South Wales rape reform prompted in significant part by the Skaf and K rape cases, suggests that there is little hope of this law reform initiative reducing rape attrition. More disturbingly, via a somatechnological critique of the reform\u27s production of “infralegal”, it also proposes that its ends can be differently understood

Constitutional Solipsism: Toward a Thick Doctrine of Article III Duty; or Why the Federal Circuits’ Nonprecedential Status Rules are (Profoundly) Unconstitutional

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name. Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right. Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness of such a doctrine

The Prose and the Passion

This essay takes the late Robert Cover\u27s insight that “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning,” and thus that “For every constitution there is an epic” as the starting point for a reading of Australian legal and literary texts about the relationship of the nation and “outsiders,” as between constitutional subjects and texts. Ranging from “legal faction” texts Evil Angels (about the “Dingo Baby” case) and Dark Victory (about the Tampa incident) and The Castle, Rob Sitch\u27s filmic satire on the Australian takings clause and the landmark Native Title Decision Mabo v. Queensland, No 2, to the recent High Court cases Al Kateb, Behrooz, Re Woolley, and Ruhan, it offers a critical account of recent Australian constitutional jurisprudence regarding asylum seekers and “sexually violent predators.” The essay argues that this recent High Court jurisprudence offers a radically circumscribed reading of Chapter III judicial power (analogous to Article III judicial power in the U.S. Constitutional context), and offers comparative constitutional law perspectives on problems in U.S. Constitutional hermeneutics