Considerations of History and Purpose in Constitutional Borrowing

This essay is part of a symposium issue dedicated to Constitutional Rights: Intersections, Synergies, and Conflicts at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can\u27t resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly originalist fashion. When we do so, we learn that armed expression and white supremacy has been linked in the past in dangerous ways that must be accounted for today. Third, in deciding how to juggle a variety of constitutional interests, we must engage in purposivist interpretation, considering not only the goal of particular constitutional provisions, but also how the general enterprise of constitutionalism is affected by interpretive choices. In a time of democratic decline, which we are experiencing today, the borrowing of constitutional ideas and delineation of rights must be done in a way that treats the renewal of democracy as an overriding purpose. Otherwise, judicial decisions will be incapable of aiding perennially mistreated groups or solving intractable problems. Remaining non-judgmental as to warring conceptions of democratic life merely ratifies unequal patterns of power and influence. Fourth, as an alternative to policing rights harmony, I argue that it is a judge\u27s responsibility to help foster an unruly constitutional culture where overlapping rights and values are ubiquitous rather than to be obsessed with maintaining a mythical notion of balance. To do so, judges should pursue these twin goals: (1) ensuring the durability of connections between key constitutional values and (2) permitting one closely related value to be substituted for another when doing so is consistent with our constitutional past and can aid the project of democratic renewal

A Tradition at War with Itself: A Reply to Professor Rana\u27s Review of America\u27s Forgotten Constitutions: Defiant Visions of Power and Community

This essay responds to Professor Aziz Rana\u27s review essay, The Many American Constitutions, 93 Texas Law Review 1193 (2015). He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of conventional sovereignty sometimes seems content-free and at other times interlinked with liberal egalitarianism ; and (3) a focus on failed constitutions inadvertently tends to compartmentalize the overall tradition. I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of warring, eclectic, constitutional ideas; (2) the concept of conventional sovereignty captures the locus of mainstream constitutionalism at any given moment in time and doesn\u27t try to insulate any particular governing ideas from contestation; and (3) the constitutions analyzed are exemplars of these popular concepts--some ignored or rejected by mainstream constitutionalism--but they don\u27t purport to represent the entirety of the tradition

\u27Simple\u27 Takes on the Supreme Court

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued the ongoing project of liberal legal experimentation. In fact, Simple had something to say on many matters of constitutional law: the injustice and absurdity of racial violence and segregation, the agonizing pace of integration, the limitations of the nation’s civil rights laws, and the dwindling effectiveness of street protests. Fiction became a two-way legal medium, teaching citizens about the U.S. Constitution, while giving them a way to puncture the lofty, hegemonic, and cramped official visions of law. Through arguments, stories, and dream sequences, the author proposed a conception of equality rooted in authenticity, charity, and opportunity, to counteract the vision of selective, formal equality emerging from the Court. As an alternative, he recommended a transitional form of poetic justice to effectuate the ethical and material transformation necessary to guarantee equal protection of the law

Fire, Metaphor, and Constitutional Myth-Making

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court\u27s decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but also promotes acceptance of interpretive prerogative and creates sustainable constitutional subcultures, with their attendant myths, counter-narratives, hero figures and villains, and sacred mantras. It links citizens to governing institutions, and bridges diverse communities of interest. Metaphor is bound up with the motivations of the Justices and the development of legal doctrine, and marks the steady ascendancy of the American Supreme Court to the center of cultural and legal life. To illustrate these themes, the article examines the appearance of the fire metaphor and fire-inspired legal sayings in the Court\u27s free expression rulings over time, drawing on the work of cultural anthropologists, legal theorists, and cognitive linguists. Launched in early speech decisions involving socialist ideology, and reinvented in more recent cases involving cross-burning and the Internet, the fire motif has had a long pedigree. Tracing the Court\u27s invocation of fire across the decades, we can uncover a wealth of information about the interaction between rule and myth, legal doctrine and symbol. Born in the early part of the Twentieth Century during turbulent times, the fire metaphor has enjoyed an integral role in the construction of our free speech folklore. Across historical epochs and amid social upheavals, it has alternately collaborated with and jousted with other free speech metaphors and icons. The curious life of this remarkable, though often overlooked, language composition tells us much about the institution of the Court, our modes of constitutional discourse and myth-making, and the interactive nature of legal change

Immigration Unilateralism and American Ethnonationalism

This paper arose from an invited symposium on Democracy in America: The Promise and the Perils, held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the 1960s. These efforts at demographic control are being pursued unilaterally, however, without sufficient evidence there is a broad and lasting desire on the part of the people to alter the fundamental values generated during that period. In order to withstand Trumpism’s challenges, we’ll have to better understand the Immigration and Naturalization Act’s origins as an integral component of the civil rights revolution. When we revisit this history, we learn that this settlement introduced three principles into the immigration context: equality, a presumption of cultural compatibility, and family integrity. These crucial principles must be made part of any judicial evaluation of a president’s policies — especially those conducted unilaterally