Interpretation, Critique, and Adjudication: The Search for Constitutional Hermeneutics

This Article seeks a model for a constitutional hermeneutics in an examination of two key debates in philosophical hermeneutics—the Gadamer-Betti debate over the role of author\u27s meaning in interpretation and the Gadamer-Habermas debate over transcendence and critique. It compares these to the framers\u27 intent and nonoriginalism disputes in constitutional theory. But the result is not another method of constitutional interpretation. Rather it is a hermeneutically informed way of viewing the practice of constitutional adjudication itself

The Clothes Have No Emperor, or, Cabining the Commerce Clause

Critics often assert that the Supreme Court has no coherent, consistent doctrine regarding the federal power under the Commerce Clause. However, this article contends that the Court has stated a consistent, traditional Commerce Clause doctrine, which can be used to harmonize the Lopez and Morrison opinions. This doctrine has been hidden by the modern result-driven commerce clause debate that focuses on three elements: Congress\u27 power to regulate the use of channels of interstate commerce, the instrumentalities of interstate commerce, and activity having a substantial effect on interstate commerce. By focusing on these three elements, the Court\u27s Commerce Clause analysis becomes weak and problematic, and is only resolved using the doctrine of incidental powers, which relies on a textual reading of the Necessary and Proper Clause. Established through reviving an accurate reading of McCulloch and applied to the current three-element test, this article\u27s solution allows for a balancing test instead of a rigid formula. The article concludes by advancing an argument for federalism

“As time goes by”: hermenêutica e originalismo

What is the continuing relevance of hermeneutics to legal theory in general and to constitutional theory in particular if we are all originalists now? Both seem to be vital despite the decline of interest in hermeneutics recently. This article argues for the continuing relevance of hermeneutics to both fields because of the centrality of issues of application and practical reasoning in both. Law seeks to find the meaning of texts applied over time; legal texts are truly letters of transit. That we are all originalists, yet still have the same sort of interpretive debates we have always had, only indicates the continuing need to work on hermeneutic questions of application and practical reasoning. These issues are explored in the context of the Dworkin/Scalia discussion of the distinction between expectation and semantic originalism.Key words: originalism, hermeneutics, constitutional theory, legal interpretation.Qual é a relevância contínua da hermenêutica para a teoria jurídica em geral e para a teoria constitucional em particular se todos nós somos originalistas agora? Ambas parecem ser vitais, apesar do recente declínio de interesse pela hermenêutica. Este artigo discorre sobre a relevância contínua da hermenêutica para ambos os campos devido à centralidade das questões de aplicação e raciocínio prático em ambos. O dieito procura encontrar o significado dos textos aplicados ao longo do tempo; textos legais são verdadeiramente cartas de trânsito. O fato de que nós somos todos originalistas, mas ainda temos o mesmo tipo de debates interpretativos que sempre tivemos, somente indica a necessidade contínua de trabalhar em questões hermenêuticas de aplicação e raciocínio prático. Estas questões serão exploradas no contexto da discussão Dworking/ Scalia a respeito da distinção entre expectativa e originalismo semântico.Palavras-chave: originalismo, hermenêutica, teoria constitucional, interpretação legal

A “Post” Pandemic(s) Village Check-In: Pulse Checks and Recommendations for a Hard Re-Set in Education

Utilizing the lens of the “pandemic as portal” (Roy, 2020; Souto-Manning, 2021) and the need for a “hard re-set” (Ladson-Billings, 2021) of our current education system, this literature synthesis engages with head, health, and home to consider what a new normal could look like as we take a “village check-in” of each area. For head, we consider the systemic barriers to equitable academic achievement that have long been in place for Black and Brown students. When considering health, we look at the impact of the pandemic on teacher well-being and how this may impact their ability to teach effectively and equitably. Lastly, in a pulse check of home, we look back at the unequal past, while orienting forward towards opportunities for re-imagining home-school connections as we negotiate what a new normal can look like “post” pandemic(s)

Communicating ocean acidification across barriers: Stories and strategies from a year around the world

Between July 2012-2013, I traveled on a Thomas J. Watson Fellowship studying how human communities in Norway, Hong Kong, Thailand, New Zealand, the Cook Islands and Peru might be affected by ocean acidification. I interviewed, lived and worked with hundreds of members of marine dependent communities, investigating how they valued resources threatened by ocean acidification. The vast majority of the community members I worked with had no knowledge of ocean acidification and poor ocean literacy. Thus, I developed tools to communicate and contextualize this complex science issue across language and cultural barriers. I found the best method of communication was to explain the science of ocean acidification in a personalized, narrative format, drawing from the lives of my audience to make connections between ocean acidification and resources and practices they value. In order to do this, I needed to listen carefully to the needs and concerns of each community. In this talk, I will share examples of how I did this in a variety of communities, ranging from Seventh Day Adventists in the Cook Islands to scallop farmers in Peru