"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, November 21, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

The Abstract Meaning Fallacy

John O. McGinnis

Northwestern University - School of Law

Michael B. Rappaport

University of San Diego School of Law

University of Illinois Law Review, Forthcoming


This Article, which was written for a symposium on Jack Balkin's book, Living Constitutionalism, criticizes the principal method that is used to argue that originalism allows modern interpreters significant discretion. The key move in this argument occurs when an interpreter claims that possibly abstract constitutional language has an abstract meaning. Clauses with abstract meanings allow interpreters to exercise significant discretion over their content. Consequently, interpreters can claim to find modern values in these clauses and still argue that that they are respecting the original meaning.

This interpretive move is examined and argued that two well-known theorists who employ it, Ronald Dworkin and Jack Balkin, commit a fallacy – what we term 'the abstract meaning fallacy.' This fallacy occurs when interpreters conclude that possibly abstract language has an abstract meaning without sufficiently considering the alternative possibilities. While possibly abstract language might turn out to have an abstract meaning, this result does not exhaust the interpretive possibilities. As we show with examples, the better interpretation of such language considered in context might turn out to have either a concrete meaning or a general meaning that is not abstract.

Ronald Dworkin is not himself an originalist, but he argues that an originalist methodology should lead to abstract interpretations. Unfortunately, Dworkin consistently assumes an abstract meaning without closely examining other possible historical meanings.

Jack Balkin makes a variety of more complex arguments, but also commits the abstract meaning fallacy. Balkin attempts to support his preference for abstract interpretations by claiming that many constitutional provisions take the form of open-ended principles that allow modern interpreters significant discretion. But Balkin presents little evidence that the Framers embraced such a distinctive method of writing and interpreting a constitution. Balkin also claims that abstract constitutional provisions are necessary to enable politics by allowing political processes to give content to the values that the abstract provisions leave open. But provisions as abstract as he prefers are not necessary to politics, because non-abstract provisions can also allow a significant political sphere. Further, Balkin attempts to support his approach with normative arguments. But Balkin’s normative vision does not comport with that of the actual Constitution and, in our view, is normatively unattractive. Thus, Balkin is no more successful than Dworkin in showing that originalism can be collapsed into living constitutionalism.

The Judicial Power and the Inferior Federal Courts: Exploring the Constitutional Vesting Thesis

A. Benjamin Spencer

University of Virginia School of Law; Washington & Lee University School of Law

Georgia Law Review, Vol. 46, No. 1, 2011

Washington & Lee Legal Studies Paper No. 2011-22


The third branch of our federal government has traditionally been viewed as the least of the three in terms of the scope of its power and authority. This view finds validation when one considers the extensive authority that Congress has been permitted to exercise over the Federal Judiciary. From the beginning, Congress has understood itself to possess the authority to limit the jurisdiction of inferior federal courts. The Supreme Court has acquiesced to this understanding of congressional authority without much thought or explanation.

It may be possible, however, to imagine a more robust vision of the Judicial Power through closer scrutiny of the history and text of Article III of the U.S. Constitution. The Constitution vests the Judicial Power of the United States exclusively in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” This Article reviews historical evidence that reveals that delegates to the Federal Convention considered and rejected language that would have given Congress express authority to manipulate the jurisdiction of inferior federal courts. This fact, coupled with repeated indications by the Framers and by the delegates to state ratifying conventions that the independence of the Judicial Branch from each of the other branches was of paramount importance, may give some weight to an understanding of the Judicial Power that challenges — or at least may moderate — our understanding of Congress’s authority to withhold from the inferior federal courts some portion of the Judicial Power vested in them under Article III.

Religious and Cultural Dress at School: A Comparative Perspective

Elda De Waal

North-West University

Raj Mestry

University of Johannesburg

Charles J. Russo

University of Dayton

Potchefstroom Electronic Law Journal, Vol. 14, No. 6, 2011


This article investigates and compares the different approaches towards the dress code of learners in South Africa and the United States of America (US), as the US mainly base litigation concerning school dress code on their freedom of speech/expression clause, while similar South African court cases focus more on religious and cultural freedom.

In South Africa, school principals and School Governing Bodies are in dire need of clear guidelines on how to respect and honor the constitutionally entrenched right to all of the different religions and cultures. The crisis of values in education arises from the disparity between the value system espoused by the school and the community, and that expressed in the Constitution of the Republic of South Africa, which guarantees learners' fundamental rights, including those of freedom of religion, culture, expression and human dignity. On the one hand, the South African Schools Act requires of School Governing Bodies to develop and implement a Code of Conduct for learners, and on the other, that they strictly adhere to the Constitution of the country when drawing up their dress codes. The right of a religious group to practice its religion or of a cultural group to respect and sustain its culture must be consistent with the provisions of the Bill of Rights (which is entrenched in the Constitution) and this implies that other rights may not infringe on the right to freedom of religion and culture.

In the US, although there is no legislation that protects learners' freedom of religion and culture at schools, their First Amendment guides the way. Their Supreme Court respects the religious values of all citizens provided that they are manifested off public school premises. While we acknowledge the existence of religious and cultural diversity at South African schools, this paper focuses on the tension among and on the existence of different approaches towards the human rights of learners from different religious and cultural backgrounds in respect of dress codes.

The Birth of a Legislature: The EU Parliament after the Lisbon Treaty

Wim J. M. Voermans

Leiden University - Leiden Law School

The Brown Journal of World Affairs, Vol. 17, No. 2, pp. 163-180, 2011


By the end of 2009, Ireland, the Czech Republic, and Poland finally ratified the Treaty of Lisbon. This marked the end of a turbulent period that had seen the Laeken Declaration, a controversial and rejected proposal for a Constitution for Europe (in 2005), and the hard fight over the compromise of the Treaty of Lisbon. The Treaty of Lisbon entered into force on 1 December 2009. All involved parties did their utmost to play down the importance of the Lisbon Treaty in attempt to prevent the re-ignition of earlier debates. In fact, the Treaty of Lisbon was widely presented as a step backward compared to the overly ambitious constitutional treaty. This 'cover-up', however, cannot hide that the institutional changes brought about by Lisbon are quite significant. In particular, the changes to the legislative procedure and legal instruments of the Union are significant and major. This contribution takes a look at these changes and the new and more powerful position

Blunders of the Supreme Court of the United States, Part 2

Dan Goodman


The second in a series of two articles on blunders made by the Supreme Court of the United States. In this article the case of McCulloch v. State of Maryland (17 U.S. 316, 1819) is examined. The blunder made is that Congress under the 'necessary and proper' clause has implied powers. Reference to The Federalist Papers is made to show that Congress does not have implied powers under this provision, however, that the provision only authorizes Congress to pass necessary and proper laws for executing the powers granted to it under the Constitution.

of the European Parliament in the ordinary legislative procedure. The overaching question the contributions addresses is whether the new Lisbon legislative procedure constitutes a true 'legislature' in the classical sense.

Judicial Recognition of Constitutional Statutes: Looking Past the Sovereignty Debate

Tarunabh Khaitan

Faculty of Law, University of Oxford


This paper argues that the United Kingdom has a legally cognisable constitution qua constitution, in the sense that judicial characterisation of a statutory provision as ‘constitutional’ appears to be making a material difference to legal outcomes. This development has largely escaped notice in our debates on constitutional statutes because of a distracting focus on parliamentary sovereignty, fuelled by the judicial dictum in Thoburn. The paper shows that the characterisation of certain statutory provisions as ‘constitutional’ (and the implied distinction between ‘constitutional’ and ‘ordinary’ provisions) is being made for two distinct purposes: first, judges are adopting special interpretive approaches towards constitutional provisions and justifying these special approaches with reference to the fact that the provisions being interpreted are constitutional. Secondly, constitutional norms are increasingly being entrenched against the delegated legislative power of bodies other than the UK Parliament (such as the Executive and the devolved legislatures). These developments do not have any impact on parliamentary sovereignty as we understand it today. If anything, Parliament’s role as the repository of constituent power only affirms rather than erodes its legal and political pre-eminence. There are, however, other serious implications of these developments which must be noticed.

Enemy Combatants and the Writ of Habeas Corpus

Steven R. Swanson

Hamline University

Arizona State Law Journal, Vol. 35, p. 939, 2003


Prior to the September 11, 2001, terrorist attacks, the United States treated international terrorism problems as primarily a criminal law concern. This article analyzes the legal arguments under U.S. national security law for indefinite detention of enemy combatants. It begins by reviewing the facts surrounding the enemy combatants’ imprisonment. It briefly discusses the history of the writ of habeas corpus and then examines international law, which might provide detainees with their only available remedy. Next, this article will review U.S. Supreme Court cases dealing with military power to imprison people during national emergencies. Finally, it will analyze recent decisions relating to detainees in light of this Supreme Court authority and international law. Ultimately, Guantanamo may not be the best policy and may be subject to challenge under international law, domestic law appears to justify unlimited detention. U.S. citizens, on the other hand, deserve – and receive – greater protections under the Constitution.

The True Compass: No Federal Question in a State Law Claim

Douglas D. McFarland

Hamline University

University of Kansas Law Review, Vol. 55, p. 1, 2006


The allocation of jurisdiction between state and federal courts is a core concern of our American federal system. Article III of the Constitution grants federal jurisdiction over a specific, limited list of cases and controversies. The question that has caused the most analytical difficulty for the allocation of jurisdiction over the past century is whether a federal court has original federal question jurisdiction when an issue of federal law is embedded in a claim created by state law. This article proposes that the Supreme Court apply Ockham’s razor by returning to an earlier understanding of “arising under.” A claim arises under the law that creates it. A claim created by Congress is a federal question. A claim created by state statute or state common law is not a federal question. The author argues that the Court said so nearly a century ago and should once again. Part II begins by briefly tracing federal question jurisdiction from its first conferral in 1875 to the present. Part III argues that the accumulated analysis in this area by the Supreme Court is problematic for many reasons, including disrespecting the constitutional language, usurping authority from Congress over federal jurisdiction, running contrary to its other decisions on federal jurisdiction, and creating a malleable equity guide instead of a jurisdictional rule. Part IV argues the Court should clarify jurisdiction law by readopting the AMERICAN WELL WORKS rule that a case arises under the law that creates the claim.

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