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A Plea For Constitutional Balance, Stephen M. Feldman

Stephen M. Feldman

The End Of The Cold War: Can American Constitutionalism Survive Victory?, Stephen M. Feldman

Stephen M. Feldman

The nation's Cold War battle against the Soviet Union pervasively influenced American law and society, as numerous scholars have observed. The Cold War, for instance, spurred the strengthening of civil rights and the capitalist economy. The federal government needed to protect civil rights, at least symbolically, to deflect Soviet denunciations of democracy. Meanwhile, the ostentatious exhibition and use of American consumer products contrasted American economic prosperity with Soviet struggles. Thus, during the Cold War, the government and the capitalist leaders were bonded together in a struggle against the communist enemy. The overriding desire for Cold War victory tempered potential political …

Empiricism, Religion, And Judicial Decision-Making, Stephen M. Feldman

Stephen M. Feldman

No abstract provided.

Constitutional Interpretation And History: New Originalism Or Eclecticism?, Stephen M. Feldman

Stephen M. Feldman

The goal of originalism has always been purity. Originalists claim that heir methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method -- the approach that reveals the purest constitutional meaning -- is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates …

The Interpretation Of Constitutional History, Or Charles Beard Becomes A Fortuneteller (With An Emphasis On Free Expression), Stephen M. Feldman

Stephen M. Feldman

In "An Economic Interpretation of the Constitution of the United States", Charles A. Beard argued that the framers advocated for and defended the Constitution because of their personal economic interest, that the pursuit of common good was not so much a motive as a veneer. The current historical consensus is that Beard's thrust is incorrect. In this essay, I largely agree with this assessment, but his economic approach can add an important element to the discussion of constitutional history. And though his economic depiction does not closely fit the framing of the Constitution, it uncannily fits the Roberts Court's current …

Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen M. Feldman

Stephen M. Feldman

This essay is derived from the Jerry W. Housel/Carl F. Arnold Lecture, delivered on November 3, 2012 at the University of Wyoming College of Law. The work discusses Chief Justice John Roberts's decision in the Affordable Care Act case in light of its political significance as compared to the Madison v. Marbury case. The essay briefly summarizes the ACA case and goes on to focus on Congress's commerce power. It examines the constitutional doctrine that preceded the case and then explores how Roberts changed the doctrine.

Democracy And Dissent: Strauss, Arendt, And Voegelin In America, Stephen M. Feldman

Stephen M. Feldman

During the 1930s, American democratic government underwent a paradigmatic transformation from republican to pluralist democracy -- a movement away from relying on white Anglo-Saxon male values of the common good and toward a more open and inclusive form of democracy. Pluralist democracy achieved hegemony during the post-World War II era as the correct theory and practice of government, but it did not go unchallenged. European emigres such as Leo Strauss, Hannah Arendt, and Eric Voegelin, all of whom had escaped from Nazi Germany in the 1930s, raised the most persistent oppositional views. This Article is about those contemporaries who experienced …

Do The Right Thing: Understanding The Interest-Convergence Thesis, Stephen M. Feldman

Stephen M. Feldman

Professor Derrick Bell was one of the most influential constitutional scholars of the last fifty years. His insights spurred civil rights scholars as well as thinkers in other fields. One of his most important legacies is the interest-convergence thesis, which asserts that, historically, African Americans gained social justice primarily when their interests converged with the interests of the white majority. In a recently published article, Rethinking the Interest-Convergence Thesis, Professor Justin Driver calls this legacy into question. This Essay defends the interest-convergence thesis from Driver’s attack. It argues that the analytical flaws he identifies only exist by dint of his …

Conservative Eras In Supreme Court Decision Making: Employment Division V. Smith, Judicial Restraint, And Neoconservatism, Stephen M. Feldman

Stephen M. Feldman

Commentators often describe Employment Division v. Smith as the beginning of a new era in free exercise decision-making. Before Smith, the Supreme Court typically articulated and applied a strict scrutiny standard to resolve free exercise exemption claims. After Smith, the Court deferred to the political process, upholding any reasonable law of general applicability. From a doctrinal standpoint, this description of Smith is perfectly accurate and informative. In this Essay, I argue that from a legal-political standpoint, Smith manifests the culmination of one type of judicial conservatism -- a traditionalist conservatism that had been developing since the 1970s. Judicial restraint and …

Divided We Fall: Religion, Politics, And The Lemon Entanglements Prong, Stephen M. Feldman

Stephen M. Feldman

The 2008 campaign for the presidency should remind Americans that mixing religion and politics can be dangerous. Polls show that more than half of American voters would hesitate to support a Mormon candidate. In terms of Establishment Clause doctrine, the entanglements prong of the Lemon test provides a mechanism for protecting political equality by ensuring against religiously-inspired political divisiveness. Yet, in recent years, numerous scholars and Supreme Court Justices have attacked the entanglements prong. Indeed, the Court has poked so many holes in the entanglements inquiry that it may no longer exist. This Article defends the political-divisiveness component of the …

Do Supreme Court Nominees Lie? The Politics Of Adjudication, Stephen M. Feldman

Stephen M. Feldman

When John Roberts and Samuel Alito testified during their Senate confirmation hearings, they promised to decide cases apolitically in accord with the rule of law. Yet, during their first terms on the Supreme Court, they repeatedly voted to decide cases consistently with their conservative political ideologies. One must wonder: did Roberts and Alito lie‘ This Essay answers this crucial question by critiquing the theories of Richard Posner and Ronald Dworkin, two of the most prominent jurisprudents of this era. While Posner and Dworkin have vehemently attacked each other, they both maintain that Supreme Court adjudication of hard cases is politics …

An Arrow To The Heart: The Love And Death Of Postmodern Legal Scholarship, Stephen M. Feldman

Stephen M. Feldman

This Article responds to two critiques of postmodern legal scholarship published by Dennis W. Arrow in the Michigan and Texas Law Reviews. Arrow raises the modernist criticisms that are most often leveled against postmodern legal scholars. If Arrow and the other critics were to be believed, postmodernists are muddle-headed thinkers who write indecipherable jargon-filled nonsense. Even worse, they are irresponsible nihilists who lack political convictions. Such criticisms of postmodernism are unpersuasive because the typical modernist depiction of postmodern legal thought is seriously inaccurate. It is little more than a caricature.The modernists, in other words, are imprecise and downright wrong. Now, …

Playing With The Pieces: Postmodernism In The Lawyer's Toolbox, Stephen M. Feldman

Stephen M. Feldman

The distinction between modernism and postmodernism in legal scholarship is highly complex. This Essay does not explore this problem in depth but builds on the recognition that most modernist scholars expressly articulate and defend normative values and goals, while postmodern scholars rarely do so. Postmodernists are themselves enmeshed within the structures of scholarly and lawyerly discourse. As such, they must construct narratives and arguments that use the available rhetorical tools of discourse--namely, they must use modernist and postmodernist concepts to present their views. But whereas modernist scholars use similar tools with earnestness, postmodernist scholars use these tools with irony. Postmodernists …

From Premodern To Modern American Jurisprudence: The Onset Of Positivism, Stephen M. Feldman

Stephen M. Feldman

This article explains the crucial differences between premodernism and modernism. A distinctive feature of premodernism was an abiding faith in nature or God as a stable and foundational source of meaning and value. When premodernism gave way to modernism, the commitment to foundationalism remained intact. Modernists believed that knowledge must be firmly grounded on an objective foundation. A crucial distinction between modernism and premodernism, however, lay in their respective ideas of foundations. Whereas premodernists readily accepted God and nature as foundational sources for value and knowledge, modernists rejected religious, natural, and other traditional footings and searched for some alternative foundation. …

Principle, History, And Power: The Limits Of The First Amendment Religion Clauses, Stephen M. Feldman

Stephen M. Feldman

This article addresses whether the religion clauses of the U.S. Constitution prohibit the injection of religious values into political debate. I argue that Christianity hegemonically controls American society and culturally oppresses outgroup religions, particularly the prototypical minority religion of Judaism. I critically analyze how the constitutional principle of separation of church and state contributes to the current orientation of power within American society. I approach the problem of Christian social power from three perspectives: symbolic power, structural power, and the relationship between symbolic and structural power.

The Politics Of Postmodern Jurisprudence, Stephen M. Feldman

Stephen M. Feldman

Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence is either conservative or apolitical because it lacks the foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. Postmodern interpretivism does not lead to an infinite regress of interpretations that undermines …

Diagnosing Power: Postmodernism In Legal Scholarship And Judicial Practice (With An Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases, Stephen M. Feldman

Stephen M. Feldman

Whereas modernists constantly attempt to reduce the meanings of texts to an essential core or single truth, postmodernists are antifoundationalists and anti-essentialists. According to postmodernists, the meaning of a text is never grounded or stable, and therefore one can always find multiple meanings or truths. Thus, one performs a postmodern flip by taking a segment of a text, event, or concept that apparently has been reduced to a static meaning or truth and suggesting the possible existence of another meaning or truth. The postmodern flip then is completed by exploring how this new meaning or truth of the segment of …

The Persistence Of Power And The Struggle For Dialogic Standards In Postmodern Constitutional Jurisprudence: Michelman, Habermas, And Civic Republicanism, Stephen M. Feldman

Stephen M. Feldman

Since the 1950s, most constitutional scholars have presumed that the American political system is pluralistic, with autonomous individuals struggling in the legislative arena to maximize the satisfaction of their preexisting private interests. The "new republicans" reject these presumptions and insist that constitutional jurisprudence must recognize the potential for virtuous citizens to engage in a political dialogue that generates public values and identifies a common good. Frank I. Michelman has pioneered this revival by confronting one of the most troubling and persistent difficulties of civic republican thought: the likelihood that the political dialogue will be closed to segments of the community …

Republican Revival/Interpretive Turn, Stephen M. Feldman

Stephen M. Feldman

The civic republican revival and the interpretive turn are two leading movements in constitutional jurisprudence. Civic republicanism emphasizes that citizens belong to a political community where they participate in a dialogue about the common good. Interpretivism, meanwhile, holds that all of our practices, including constitutional adjudication, are interpretive; we are always situated within interpretative communities and traditions that simultaneously constrain and enable understanding. Civic republicanism and interpretivism, however, both face serious challenges. Critics of the republican revival charge that it invites oppression and silencing of divergent voices because it emphasizes the community and the common good. Opponents of the interpretive …

Whose Common Good? Racism In The Political Community, Stephen M. Feldman

Stephen M. Feldman

Political pluralists and civic republicans have launched constitutional and political theory into a controversy of paradigmatic proportions. Pluralists insist that politics is no more than a struggle between autonomous and rational individuals or groups who strive to satisfy their preexisting private interests. Civic republicans argue instead that the government should pursue the common good, not preexisting private interests. Something vital is missing from this debate: a recognition of and confrontation with American racism. In the context of American society, no constitutional or political theory can succeed without a comprehensive awareness and understanding of racism. The Constitution must be understood, interpreted, …

The New Metaphysics: The Interpretive Turn In Jurisprudence, Stephen M. Feldman

Stephen M. Feldman

A debate between realists and antirealists has characterized western metaphysics. While metaphysical realists ground existence on an objective world, antirealists ground existence on a thinking subject and human culture. The argument in jurisprudence, as elsewhere, is that either we are capable of objective knowledge or we are doomed to free-floating subjectivism. We demand the impossible -- absolute objectivity -- to avoid the catastrophic -- unconstrained subjectivity. The interpretive turn attempts to move beyond this insoluble dilemma, the either/or of objectivity and subjectivity. Thus, in jurisprudence, the interpretive turn is well worth taking if only because it offers the possibility of …

Felix S. Cohen And His Jurisprudence: Reflections On Federal Indian Law, Stephen M. Feldman

Stephen M. Feldman

In 1942, Felix S. Cohen published the Handbook of Federal Indian Law, the first synthesis of that field. At that time, Cohen was renowned as a legal philosopher, a member of the American legal realist movement, and a leading advocate for Native Americans. The primary purpose of this Article is to relate Cohen's realist jurisprudence to the development of federal Indian law. The thesis is that Cohen's jurisprudence profoundly affected his writing of the Handbook, which, in turn, profoundly affected the development of contemporary federal Indian law. The United States Supreme Court has effectively adopted Cohen's realist method for resolving …