Downloads of the Week
- I am recommending two papers this week.
The Cycles of Constitutional Theory
First is The Cycles of Constitutional Theory by Barry Friedman. Here is the abstract:
- Constitutional theorists today are confronting a problem that always lurks, but rarely shows its potential quite this clearly. The problem is that theoretical arguments tend to cycle as the ideological composition of institutions changes. Constitutional theory, like constitutional law itself, cannot avoid an ideological cast. Thus, when the Supreme Court was liberal, conservatives argued for restraint and originalism, while progressives sought to justify activist judicial review. In response to today’s conservative Court, progressive and conservative scholars have switched sides. Constitutional theories designed at one time, under one set of circumstances, may have less appeal at a later time, under different circumstances. Yet, can something really be called a “theory” if its application depends on the ideology of the actors applying it? This article explains that constitutional theorists confront a very real problem. If theory shifts in response to institutional ideological change, it runs the risk of looking like scholarly advocacy rather than theory. On the other hand, if theory ignores present institutional agendas, it runs the risk of irrelevance. Throughout history, constitutional scholars have confronted both of these difficulties. Although the problem is a difficult one, the article explains that there are approaches that can ameliorate it. Theorists should demonstrate humility, both about the empirical basis of their claims, and about what the future might bring. In particular, theorists ought to consider the possibility of institutional change, and develop their theories with this in mind. Contextualized and narrower theories, and theories that avoid recommending structural change, are more likely to stand the test of time.
Judging our Ancestors
And my second recommendation is Judging our Ancestors: Lessons from the Criminal Law by Eric Muller. Here is the abstract:
- How should we assess the wrongdoing of our ancestors? This is an important question in an age when slavery reparations are debated and antiterrorism policies are criticized as repetitions of the Palmer Raids shortly after World War I and the Japanese American internment of World War II.
Debate about the wrongdoing of past generations typically swings back and forth from shrill denunciation to credulous justification. Credulous justification seems, at the moment, to have the upper hand: mass-market books defending the Japanese American internment, McCarthyism, and southern secession climb the bestseller lists.
This essay notes that American criminal law has already worked through a problem quite similar to that of judging past generations. It is the problem of the so-called “cultural defense”—the claim tendered by immigrant defendants charged with violent crime, who maintain that they should be judged by their own cultural standards rather than this country’s. The analogy to the problem of our ancestors is clear: just as a person might be excused because of where he is from, so might he be excused because of when he is from.
Yet American criminal law has largely rejected the cultural defense, primarily out of a recognition that to indulge such claims is to place powerless victims—typically abused women and children—at greater risk. The essay maintains that there is no clearly better reason for us to indulge claims for contextual excuse on behalf of those who come to us from another time than those who come to us from another place.
Download them while their hot!