The Legality of Constitutional Conventions

[sent to conlaw prof. We are discussing whether the states who ratified the US constitution violated their own state constitutions when doing so]  

... yes, but no such convention could have been authorized except by a statute. And no statute is authorized except by a constitution. And no statute can violate the constitution. And that constitution presumably has a provision for amending it. This is the same argument that is used against the Articles of Confederation, only it is more wisely directed at the government possessing sovereignty (the states). Think about it. You have a state government that is duly constituted and given the power to govern citizens. It does not share that power with any other state. Now, one day, James Madison comes along and that state government is passing a law to set up a ratifying convention to, in effect, share sovereignty. Shouldn't they have amended their own constitution to allow this first (or do it concurrently)?  Look at it this way: could they have set up a convention to take away the right to speech, juries or property? It seems to me if they were going
to do something that took away from or altered the state constitution, the only legal procedure would be something in the nature of an amendment.

Now, I realize that constitutions were new and that many in the legal culture thought that both provisions for amendments as well as Bills of Rights were not needed. If you are using a natural law model, then anytime you call a big enough pow wow, well, you know, it's like getting a new Pope. But in a positivistic world -- in a world where the law is only what is written -- it seems that one would have to amend the state constitution in order to join the union. The amending provision would incorporate through reference the new constitution.

Historically, the only way out of this conundrum is to: (a) be a natural law theorist; or (b) simply acquiesce in the fact that the ritual used to ratify the constitution was (i assume) the same or better than the one used to amend state constitutions, and that the legal system simply wasn't yet pedantic (overly positivistic).  

Regards. 
  
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860

________________________________
From: "Scarberry, Mark"
To: Sean Wilson ; conlawprof@lists.ucla.edu
Sent: Friday, November 21, 2008 7:00:52 PM
Subject: RE: Sovereignty as Consideration

I don't think state legislatures conveyed sovereignty. Rather, they organized the process by which conventions in each state -- made up of delegates chosen by the people for that purpose -- decided whether to ratify the Constitution (and thereby give up a portion of the state's sovereignty). Akhil Amar has argued that the state legislatures in many states permitted broader participation in the elections for convention delegates than was allowed in state legislative elections. Thus in a sense it was the people of each state (or at least a broader than usual slice of the people), rather than the legislatures, that made the decision.

Mark S. Scarberry
Pepperdine University School of Law

The Geyh Panel and The Judicial Politics Social Club

[email sent to law and courts re: a panel that is being organized by Charles G. Geyh] 

Dr. Geyh:

It may come as some surprise to you, but much of what your conference is really addressing is this: why political scientists ignored jurisprudence and philosophy of science when engaging in their work product, and why social networks continue to give certain scholars preference over others when pretending to "pronounce knowledge." One of the key problems with the premise of your panel is its suggestion that "empirical science" has the primary role of leading this normative debate. The advertisement for the panel makes it sound as if scholars have discovered new information or something -- or that quantitative works in this field are actually a true science. In fact, all that has happened recently is that the theoretical framework of the scholars producing their mathematical art has become more diverse. It is purely mythical to say that what political science thinks about judging is driven by data or evidence in the same way that, say, physics or geology is. The most refined theoretical constructs about this issue are not derived from data; they are derived from studious contemplation, from which data is only a "story." What I am saying to you  is that all that political science really is in this respect is a kind of journalism. The people who do these "studies" are no different than, say, reporters on FOX versus CNN.  So I would think that a true look at your subject might want to consider ideas about what "the club" does from one who is proudly not really a member of this church.

It seems to me that a paper at your conference addressing one (or perhaps both) of these topics is badly needed:

1. Why current quantitative scholarship that purports to address the question of whether "law" or "ideology" -- or even a mixture of the two -- governs the judicial mind is not really "science" at all, and cannot properly answer what in essence is a language game. And what these studies would actually look like if they tried to be real science instead of art.

2.  How a structuralist rather than "attitudinal" framework provides the most promising theoretical framework for what appellate judges do, and relatedly: (a) what "structuralism" is in philosophy of law; (b) how it has its primary origin from the basic ideas of the greatest legal philosopher of our century, Ronald Dworkin; and (c) how a structuralist account of judging could make sense of "poor" versus "good" judging (something which leads into an analysis of casuistry). 

I wonder, professor Geyh, how many of your panelists actually know what casuistry is? For about 18 years now, all but a very few political scientists thought the word meant "attitudes."  

Regards and thanks,   
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860

________________________________
From: "Geyh, Charles Gardner"
To: LAWCOURT-L@tulane.edu
Sent: Friday, November 21, 2008 3:11:13 PM
Subject: Invitation to attend an interdisciplinary conference: "What's law got to do with it"?

 
Good afternoon, folks:
 
I'm hosting a conference on March 27-28, 2009, here in Bloomington , under the working title: "What's law got to do with it?."  The conference will explore the interplay between law and other influences on judicial decision-making, and the implications of that interplay for judicial selection and public confidence in the courts.  It struck me that now is a useful time to step back and take a look at the recent surge of empirical scholarship that has moved us away from dichotomous arguments pitting law against attitude toward a more nuanced and eclectic way of looking at what judges do.  In so doing, my goals are to assess: (a) what we know and still don't know, (b) what (if anything) this research might tell us about how judges should be selected and regulated, and (c) whether the public is likely to care.  Papers presented at the conference will later be published as chapters in an edited volume, and I'm pleased to report that the project
is being partially funded by a grant from the Joyce Foundation.  
 
As you will see from the attached documents, participants include names familiar to the list: Larry Baum, Eileen Braman, Steve Burbank, Keith Bybee, Frank Cross (writing but not attending), Barry Friedman, Mike Gerhardt, Jim Gibson, Melinda Gann Hall, Stefanie Lindquist, Andrew Martin, Mitch Pickerill, David Pozen (writing but not attending), Matt Streb, Ted Ruger, and Jeff Segal.  In addition, the conference will include a panel of state and federal judges, who will be offering their reactions to the presentations of the academic participants.
 
I've attached two documents.  The first is a description of the conference and its panels; the second is a compilation of the abstracts submitted by participants.
 
List members who would like to attend the conference are welcome (nay, eagerly encouraged) to do so without charge, but we are not in a position to cover travel expenses.  I would ask only that you let me know if you'd like to come and on which days, so that I can maintain an accurate body count.  
 
Charlie

Charles G. Geyh
John F. Kimberling Professor of Law
Indiana University School of Law
211 S. Indiana Avenue
Bloomington, IN 47405
(812) 855-3210
cgeyh@indiana.edu

Jurisprudence as Epistemology in Constitutional Systems

[reply to a post on conlawprof]

... you've have this all messed up.

Disputes about jurisprudence in the US are epistemological, not hegemonic. That's the whole point. American constitutional mythology wants the right answer, not the efficient or expedient thing to do. To understand this, one must enter the American mind. The American understanding of legality holds that the statute is quintessentially positivistic. Because of this, it need not have a "right reason" to it. We therefore entrust the power of statute to assemblies who distribute its prerogatives via the democratic ritual. You win election, you write laws.

The constitution, however, has always been thought of as the "law of the laws." It isn't just another bureau or department playing the policy game. So the tradition in American legal thought is that the statute represents "policy," while the constitution represents a kind of righteousness (correct answer). (If you don't like this grammar, think of one as being "meta policy," the other as ordinary policy).

The central dispute in the American context has been what calculus judges should use to pronounce the righteousness (correctness). Early forms of the craft have been self contained, while later versions now incorporate looking at the world (sociological jurisprudence, for example). The critical schools of the 60's generation were the first to say that American constitutionalism had nothing to do with epistemology and that one couldn't be epistemological (justificatory) anyway. I think the people who won the day on this were Dworkinians, who suggested that law could be both justificatory and good consequentially. (One could find best answers that also had good results).

But the point is that "originalism" is an ongoing EPISTEMOLOGICAL dispute. Jurisprudence is about the epistemology of law. I don't think Europeans really understand that, because so many live within societies that excess in parliamentary logic. 

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860

________________________________
From: Miguel Schor
To: conlawprof@lists.ucla.edu
Sent: Saturday, November 8, 2008 10:01:42 AM
Subject: Why originalism?

Why does the United States fixate on originalism while polities around the globe largely (and happily) do not?  What is so different about our Constitution that mandates this different result?  The framers did not inscribe originalism into the Constitution. Democracies around the globe, moreover, have adopted, with a few exceptions, the American idea that rights should be entrenched in a written constitution (or a bill of rights) and interpreted by courts.  Courts abroad take originalism into account but originalism does not trump all other forms of interpretation.  I think the reason why originalism plays such an important role in the United States and a lesser role abroad is that originalism is a second best solution to the problem of judicial accountability.  When polities abroad adopted judicial review and constitutionalized rights in the late 20th century, they also adopted stronger mechanisms of judicial accountability that obviate the need to
obsess over originalism.  They adopted different institutional constraints because they sought to circumscribe the power of judicial review.  When Marbury (the hope of constitutionalized rights) spread around the globe, it was joined with the fear of Lochner (the fear of courts run amok).  Hamilton may have believed that constitution makers did not need to distrust judicial review as courts exercise neither force nor will but constitution makers in the late 20th century understood this to be a charming fairy tale.  For anyone who might be interested, I make this argument in a paper entitled “Judicial Review and American Constitutional Exceptionalism,” http://ssrn.com/abstract=1081385.
The question I have for the list, therefore, is why originalism?  It exacts huge costs since it precludes courts from taking the public policy implications of their decisions into account (pace Heller).  Perhaps we need to borrow the limitation clause found in section 1 of Canada’s Charter of Rights and Freedoms which instructs courts that legislatures play a role in construing rights that courts should respect.  What is so different about our constitution or constitutional order that mandates originalism über alles?

Miguel Schor Associate Professor of Law Suffolk University Law School 120 Tremont St. Boston, MA 02108 617-305-6244 SSRN Webpage http://ssrn.com/author=469730

Teaching Supreme Court Decision Making From an Autonomous Perspective

 Hi Dr. Chen.

I just read your syllabus with interest. I hope you won't mind if I make a suggestion. One of the things that I have found helpful is not to teach Supreme Court decision making through the strictures of the social club. That is, I avoid like the plague saying that there are 3 or 4 theories to decision making (strategic, "legal" and so forth). This statement is illustrative of the problem that political science has had with this subject for a great deal of time now (no sign of it quitting either). Rather, what I say is only that social science as a GROUP has this perspective. It isn't what defines the issue; it's just their contribution. Outside of social science, other people who participate in the activity (legal culture) or who think abstractly about it (philosophy) have had different insights that don't fit well into the political science framework.

Really the best way to teach this issue is to transcend all the contexts you can. Be home to no one. What I do is show a how the issue of supreme judging was (a) birthed  and (b) came to develop. In essence, I teach the history of philosophy of law, scooping up the perspective of lawyers and social scientists along the way.  This way, I don't give the fiction that what is called "empirical analysis" by a particular network is the centerpoint of the discussion (which it surely is not).

But anyway, I'm not criticizing. I just printed the syllabus because I thought it was pretty good. You might want to look at my course to get some ideas about how to further develop a multi-disciplinary (or autonomous) take on the creation and development of supreme judging over time.

When Is a Presidential Candidate Unqualified?

... I would say that the Bush choices represent a policy commodity generated in a (shocked) post 9/11 world. You must ask yourself this: who produced Bush (where did he come from)? If he were not around, who would have been produced by these (winning) forces? Would the policy product have been any different if the forces that won the democratic ritual in 2000 had a different glam spokesperson? Perhaps, but one wonders whether the difference would be significant. The simple fact is that the elites in the conservative network (and in bureaucracy) had a set of policy options that bubbled up in the "think tank" in response to a crises. 
 
I haven't looked at the polls on the war lately. But I think they are around 50/50, aren't they? (I mean, in terms of pulling out). Isn't the election right now tied (or competitive)? I wonder to what extent liberals simply complain because they can't get what they want. In other words, the qualification thing is an ideology. "We lose, so we want a new system." Palin would be no different as a leader in the American drama than would the actor (Reagan), the peanut farmer (Carter), the buffoon (Quayle), the boy from a place called Hope and so forth.   
 
The ritual in Rome is open. There are two policy products manufactured by inside elites (alpha and beta). Every four years, the horse that gives Rome its best drama wins the chance to select among alpa or beta. The problem here is that people think far too much of democratic theory. They seem to give some epistemological significance to it (that a  headcount of the people of Rome actually produces wisdom). This is a drama and it is a political ritual. It's an important ritual, of course, because it is the best (safest) way we have to structure hegemony. You might as well just watch it on tv like you do the football games.     
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860

----- Original Message ----
From: "hamilton02@aol.com"
To: Sean Wilson ; conlawprof-bounces@lists.ucla.edu; conlawprof@lists.ucla.edu
Sent: Friday, September 12, 2008 10:29:13 AM
Subject: Re: When is a Presidential Candidate Unqualified?

Hasn't George Bush disproved the glam defense?  The experts and brilliant individuals in the society cannot save the president from bad judgment in choosing who will be his experts.  If the glam politician does not have enough judgment, intelligence, or education to make the calls, he or she doesn't have it to choose who should.
In fact, I think this sort of reasoning re the fact of the multitude of issues and the number of players behind the scenes makes the case for leaders w intelligence, education, and experience even more compelling. 

Marci

Sent from my Verizon Wireless BlackBerry

 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860