Paul W. Kahn

INTERPRETATION AND AUTHORITY IN STATE CONSTITUTIONALISM

In I977, Justice Brennan delivered his now famous plea for a renaissance in state constitutionalism.1 As much as any judicial opinion he ever wrote, this plea has influenced the development of American constitutionalism. Since I977, there has been an outpouring of scholarly work as well as a renewed interest by bench and bar in the possibilities of state constitutionalism. Conferences are held and papers written in order to encourage its development.2 This essay is in the same practical style, advocating a vigorous state constitutionalism. However, I abandon the central premise of most previous works, namely, that the interpretation of a state constitution must rely on unique state sources of law. Those sources include the text of the state constitution, the history of its adoption and application, and the unique, historically identifiable qualities of the state community. State constitutional law, it is assumed, can diverge from federal law only if the differences can be traced to one of these sources. This premise rests on an idea of state sovereignty that at best is a romantic longing for vibrant local communities and at worst misunderstands modern American constitutionalism. My aim is to show that state constitutionalism can survive the abandonment of this premise and that, in fact, the doctrine of unique state sources threatens to undermine the renewed interest in and growth of state constitutional aw. My argument takes the following form. In the first two sections, I present a very brief overview of the contemporary state of federalism and the puzzling appearance of Justice Brennan as an advocate of state constitutionalism. I then elaborate a view of the interpretive character of constitutionalism. In so doing, I distinguish interpretation from truth: constitutionalism is not a single set of truths, but an

Lessons for International Law from the Gulf War

Politically and militarily, the War in the Gulf remains an unsettled event. Although nearly two years have passed since the War, its political consequences are still evolving. Militarily, the recent reintroduction of allied forces into Iraqi air space suggests that the War continues, though at a much reduced level.1 In the long run, the War will probably be seen as a footnote to the larger political upheavals that marked the start of this decade-noteworthy because it made visible the realignment of the international order that had already occurred. While the War may be merely a footnote from the perspective of political history, it is a major event from the perspective of international law. It marked one of the few occasions on which there was a deliberate invocation of international law to justify military force. For this reason, an examination of the War can teach us much about the reality of, and possibilities for, international law. Given the continuing tumultuous politics of Eastern Europe and the former Soviet Union, this legal reconsideration is important. Already, the international-legal machinery deployed in the War has served as a precedent for United Nations Security Council action authorizing military intervention in Bosnia and Hercegovina.2 We are moving rapidly toward a new world order of some sort. While it may be too early to predict the political shape of that order, it is not too early to consider the role that international law may play in it. Before we raise our hopes for a vital future for international law, we need to fully understand the character and power of existing international law. To that end, it is useful to examine international law as it operated, and failed to operate, in the Gulf War.

Reduction of ball variance in silicone rubber occluders

all variance was a major cause for concern early in the B use of heart valves with silicone rubber occluders [l, 21. Ball variance can be defined as the physical changes that can occur in vivo accompanying the absorption of simple and complex plasma lipids. The changes are manifested in several ways, including discoloration, weight gain, wear, swelling, and fissuring. Valve function can be compromised by reduced occluder mobility, or by impaction or loss of the occluder. The SCDK and the Smeloff-Cutter (S-C) valves are double-cage ball valves in which the ball passes through the orifice of the valve, with the equator of the ball essentially occluding the valve orifice. Ball variance is of particular concern because the relationship of the diameter of the ball to that of the orifice must be maintained to assure optimal valve function. Clinical evidence of ball variance was reported in about 2.5% of the SCDK and in about 1% of the early model S-C valves. Because of the relatively low incidence of variance, we believed that both chemical and physical or environmental factors are involved in the development of ball variance. A major factor appears to be aberrant flow patterns in the prosthesis. Data on early Starr-Edwards valves showed that variance occurred only in the aortic position, where turbulence and impact forces were relatively great, and usually were associated with implantation problems, whereas paired mitral implants showed no variance [2]. On this basis, the problem was approached from several angles.

Justice or Legitimacy: A Response to Ocko and Gilmartin

Inevitably, comparative law is a twofold project. We start by comparing first order legal rules: What is and is not a crime? What is protected under a property regime? Then, we are interested in how these legal norms figure in the imagin ation of the social order. Why, we ask, do people obey the law? How do they imagine the authority of law? But what is the relationship between these two kinds of inquiry? Does a private property regime, for example, support a broader understanding of the political order as a system of contractual relation ships among autonomous subjects? Can legal reform?for example, a new constitution?create new citizens, or is it the other way around, with a new conception of citizenship leading to new laws? Inevitably, such relationships move in both directions. Because every legal norm is necessarily embedded in a larger narrative, there are no general lessons to be drawn about the nature of legal and political reform. The best we can do is offer detailed case studies such as that presented by Jonathan Ocko and David Gilmartin. They show us some of the ways in which a regime can use law to construct a meaning or set of meanings that will bind citizen to ruler, or society to state?and vice versa. Still, it is possible to say something about the general shape of the problem of the relationship between these two approaches to a legal order. Most importantly, we can clarify the way the two aspects of the legal order are measured against different normative ideals: justice and legitimacy. A legal system must respond to both of these norms.

Philosophy and the Politics of Unreason

Stephen Holmes has presented a lecture full of good ideas and genuine common sense.1 If I were in a position to hire him as deputy secretary of state for policy and planning, I would. Over the past few years, he has produced a number of pieces that identify the errors and dangers in arguments made by the Bush administration and its supporters.2 He writes in praise of the rule of law, drawing our attention to the institutional wisdom embodied in our traditions of constitutional governance. Since these arguments all seem so reasonable, I always come back to the question: why does our government continue to act in ways that are so unreasonable? The answer, I will argue, is because reason is not the only measure of political action. Although Holmes, for the most part, avoids overt partisan critique, critics have received his essays in just that manner. Regardless of how objectively pragmatic any commentator tries to be, the issues at hand are inevitably understood as political. There is no neutral position from which one can offer an analysis of the facts of the matter, because the language of reason is the language of political critique in American life.4 We, meaning the political opposition, think that everything is clear. Because of the allure of reason, we come away feeling that were we in office we would do better. A longer view, however, suggests that we might not.

Una nueva perspectiva para el constitucionalismo comparado: El análisis cultural del estado de derecho occidental

Resumen Este ensayo reflexiona acerca de los desafios de comprender el estado de derecho como una forma de vida. Para ello aborda la importancia de entender la comparacion entre ordenamientos constitucionales no como una comparacion tecnica entre estructuras y procedimientos de derecho publico, sino como distintas variaciones de un tema perenne en la cultura juridica occidental: la antinomia entre razon y voluntad. Estado de derecho – cultura juridica – constitucionalismo comparado Comparative constitutionalism in a new key: the cultural study of the Western rule of law Abstract This essay reflects upon the challenges that arise from understanding the rule of law as a form of life. To that end, it explores the importance of understanding the comparison between con-stitutional orders not as a technical comparison between public law structures and procedures, but as different variations on a perennial theme within Western legal culture: the antinomy between reason and will. Rule of law – legal culture – comparative constitutionalism

The Jurisprudence of Religion in a Secular Age: From Ornamentalism to Hobby Lobby

Abstract This article considers the effects of secularization on the American constitutional law of religion. It argues that, in a secular age, religious belief becomes a matter of subjective opinion to be treated in much the same way as other opinions. Claims that religious beliefs occupy a privileged legal position become problematic, once those opinions are understood to be merely subjective. Free exercise jurisprudence tends to collapse into the jurisprudence of free speech: We protect religious speech because it is speech, not because it is religious. In establishment clause jurisprudence, endorsement becomes the focus of attention. If religious belief can never be more than a subjective opinion, then it is measured like other opinions: we want to know who supports it, not whether it is true. Thus, the endorsement test asks whether the state is asserting a religious belief as its own. Once religious belief is understood as subjective opinion, its natural place will appear to be within, not outside of, politics, for interest groups are defined by the opinions they pursue. Perhaps ironically, the increasingly visible role of religious groups in American politics is an expression not of how seriously we take religion, but of how much less serious it has become. No longer about the truth of the human condition, it is merely another opinion.