Law Commons^™

The Puzzling Absence Of Economic Power In Constitutional Theory, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Contemporary constitutional theory needs to be rooted in a more realistic description of the American political process. This Article frst argues that leading debates in constitutional theory have failed to engage with the reality of elite economic domination and that without taking into account the role economic elites play in American politics, these theories have serious limitations even on their own terms. Second, it shows that any attempt to design institutions to account for the influence of economic power will face persistent, pervasive, and perverse problems. A central task of constitutional theory going forward must be to overcome or at …

The Moral Reading As A Practice: A Response To Three Comments On Fidelity To Our Imperfect Constitution, James E. Fleming

Faculty Scholarship

In recent years, many originalists have claimed a monopoly on concern for fidelity in constitutional interpretation. In my book, Fidelity to Our Imperfect Constitution, 1 I reject originalisms—whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a “moral reading” of the United States Constitution, or a “philosophic approach” to constitutional interpretation. I refer to conceptions of the Constitution as embodying abstract moral and political principles—not codifying concrete historical rules or practices—and of interpretation of those principles as requiring normative judgments about how they are best understood—not merely historical research to discover relatively …

Constitutional Bad Faith, David E. Pozen

Faculty Scholarship

The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. This doctrinal deficit is especially striking given that the U.S. Constitution twice refers to faithfulness and that insinuations of bad faith pervade constitutional discourse.

This Article investigates these points and their …

Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus

Articles

In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …

Economic Structure And Constitutional Structure, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In the last four decades, the American middle class has been hollowed out, and fears are growing that economic inequality is leading to political inequality. These trends raise a troubling question: Can our constitutional system survive the collapse of the middle class? This question might seem tangential-if not unrelated-to contemporary constitutional theory. But for most of the history ofpolitical thought, one of the central problems of constitutional design was the relationship between the distribution of wealth in society and the structure of government. Two traditions emerged from thinking about this relationship. The first tradition assumed that society would be divided …

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Publications

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …