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A Tradition at War with Itself: A Reply to Professor Rana\u27s Review of America\u27s Forgotten Constitutions: Defiant Visions of Power and Community
Get PDFhis 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
Federal Government\u27s Proposed Expansion of Regulation of Biospecimen Research Should Be Reconsidered
No full textIn September, the U.S. Department of Health and Human Services, together with other federal agencies, announced proposed changes to the rules governing human subjects research. This Commentary discusses how the proposals would affect research using biospecimens that is essential to the future success of precision medicine. We argue that the proposed changes unnecessarily burden such research, without meaningfully advancing the interests of donors. They should be revised before being finalized
Brief Amici Curiae of Professors of History, Political Science, and Law in Support of Respondent
Get PDFSex-based laws premised on archaic presumptions about the proper roles of men and women run afoul of established constitutional principles, especially when they interfere with the parent-child relationship. Amici write to explain the history of the federal government’s use of sex-based classifications in the regulation of citizenship. In its regulation of intergenerational and interspousal citizenship transmission, the federal government has perpetuated outdated gender-based norms concerning proper parental roles, even when those norms have been rejected in other legal and social contexts. In addition, the laws governing derivative citizenship have significantly encumbered the ability of American fathers to transmit citizenship to their foreign-born nonmarital children
\u3cem\u3eFidelity to Our Imperfect Constitution\u3c/em\u3e: A Reply to Six Views
Get PDFI am deeply grateful to Constitutional Commentary for publishing this symposium on my recent book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms. In the book, I put forward a sustained critique of originalism-whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a moral reading of the U.S. Constitution\u27 and what Sotirios A. Barber and I have called a philosophic approach to constitutional interpretation.4 By moral reading and philosophic approach, I refer to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, I show the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. I argue that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach, not any version of originalism or living constitutionalism. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity (pp. xi, 3)
Big Questions Comparative Law
Get PDFThis essay reflects on Ran Hirschl’s book Comparative Matters. Feeling that historical comparative law methodologies have been found wanting it looks to newer methods. For example, the critical approach to comparative law relies on comparison to expose the implicit biases and assumptions of the observer’s own system and to denounce the illusory and ideological nature of “legalism,” namely, the claim that law is both neutral and necessary. Comparative law and economics seeks to explain in precise terms the convergence of legal rules by using efficiency as a key metric. Comparative law and economics also gives a comparative twist to the notion of efficiency, showing that the same rule may be efficient in one system but not in another, because efficiency is a matter of fit in a larger institutional framework
From Outlaw to Outcast to In-Law? Contesting the Perils of Marriage Equality
Get PDFI am pleased to offer the opening commentary in this BU Law Review Annex symposium on Professor Katherine Franke’s provocative new book, Wedlocked: The Perils of Marriage Equality. As previewed by the book’s additional subtitle, “How African Americans and Gays Mistakenly Thought the Right to Marry Would Set Them Free,” Franke aims to provide “cautionary tales” gleaned, or lessons learned, from juxtaposing post-Civil War regulation of the marriages of African Americans freed from slavery with today’s movement for marriage equality for gay men and lesbians.3 Long a skeptic about the gay community’s focus on the goal of marriage—its (in Franke’s memorable phrase) “Longing for Loving [v. Virginia (1967)],”4 Franke aims to buttress the case for caution with archival research on post-Civil War meanings of marriage for newly freed people. As my two opening quotations from Obergefell v. Hodges and Wedlocked suggest, while Justice Kennedy views same-sex couples’ gaining access to the right to marry as fulfilling the Constitution’s “promise of liberty” and affording freedom, Franke views such access more through the lens of subjecting oneself to a new form of state regulation at the expense of freedom. Indeed, though they are ideologically poles apart, Franke seems more aligned, in this regard, with dissenting Justice Scalia, who mockingly answered Justice Kennedy’s argument that, “through [marriage’s] enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality,” with “Really?” Scalia countered that “Freedom of Intimacy is abridged rather than expanded by marriage.
The Role of the Courts in Creating Racial Identity in Early New Orleans
Get PDFReviewing Kenneth R. Aslakson, Making Race in the Courtroom: The Legal Construction of Three Races in Early New Orleans (New York University Press 2014).
/= / \u3eThe racial history of New Orleans is unique among American cities, as is Louisiana\u27s among the history of American states. In the antebellum period, there were more free people of color in New Orleans than in any other city in the South, and free people of color lived, and often prospered, throughout Louisiana. The presence of so many free people of color in New Orleans, and Louisiana more generally, arose from many factors, including the consequences of French and Spanish rule, the transportation of African slaves to and through this port city and the influx of refugees from the Caribbean in the wake of the Haitian Revolution and other events there. Free, light-skinned, French-speaking people of color occupied a special social status between that of whites and darker-skinned blacks, including, of course, slaves. The question is how did it happen? How did the social reality of three races occur
Vaccines and Airline Travel: A Federal Role to Protect the Public Health
Get PDFThis Article explores two ways in which airline travel is an important vector for the spread of infectious disease, and argues that airlines have market-based and liability-based reasons to require that passengers be vaccinated. Going further, the Article explores whether the federal government has the legal and constitutional authority — especially under the Commerce Clause — to encourage or mandate that airlines implement such a vaccine screen. By disrupting the spread of disease at key network nodes where individuals interact and then connect with other geographic regions, and by creating another incentive for adult vaccination, an airline vaccine screen could be an effective and legally viable tool for the protection of public health
Speaking from the Grave. Should Copyright Listen?
Get PDFShould authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).
Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s integration into artistic or literary culture, under the law, heirs and literary estates have the power to exercise control over the work’s continued use and dissemination.
This enduring control may be troublesome for reasons related to the special contours of intellectual property shaped by both private rights of exclusion and public rights of access to culture and knowledge. The longer that exclusive control over works is exercised into the future, the slower the public domain is enriched to promote the constitutional prerogative of “progress of science and the useful arts” through copyright.
This is not just a problem of copyright duration, which has continued to lengthen since its U.S. origins of fourteen years in 1790. It is also a problem for an author’s purposes and hopes for a work, which can shift over a lifetime with changes to cultural production, aesthetics, and business practices, to say nothing of personal predilections and personality