How to Violate the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment.

Part of: Constitutional Stupidities: A Symposium

Seven Pluralist Fallacies: In Defense of the Adversary Process-A Reply to Justice Rehnquist

The author analyzes the role of litigation in a pluralistic society through his discussion of the pluralist\u27s fallacies, seven characteristic errors underlying much opposition to judicial activism. He advocates a large and active role for the adversary process in order to ensure that less established groups have a forum in which to protect their interests

Soundings and Silences

My work over the years has included both studying existing constitutions, particularly that of the United States, and assisting others with the drafting of new constitutions—from the Marshall Islands to the Czech Republic to South Africa. Among the things I noticed was that those undertakings, although distinct, were related—and related most significantly in the way that formative decisions about what to say and what not to say in a new constitution have bearing on later decisions about how to interpret what a constitution says or fails to say. My decision to pay special attention to the various roles of silence in the distinct but related projects of constitution-making and constitution-interpreting was underscored by an observation a law student of mine (Louis Fisher, J.D. 2016) once made about how he had been struck by the “presence of absence” in Berlin’s modern urban landscape. My student was moved by the way Berlin harnessed the “power of negative space in framing the public memory of World War II, from skeletal monuments outlining former churches to negative-space sculptures of murdered Jewish families.” I was born in Shanghai to Russian Jewish refugees, many of whose closest relatives had perished in the pogroms of Russia or had been silenced in the ultimate sense at the hands of the Nazis. That made this image of absence particularly vivid and meaningful to me. As I look back at where I came from and what I’ve done over the course of my professional life, it strikes me that attempting to organize and give structure to the study of legal silence has been a primary purpose of much of what I have written and taught over the past half-century. In recent years, I decided to focus more systematically on that attempt in an advanced seminar I have been teaching at Harvard Law School and, to a lesser degree, in courses I have taught as a University Professor to Harvard College undergraduates. This paper is an outgrowth of that effort—an outline of how I hope to pursue it in the years that remain, and how I hope others will pursue it as well