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The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum
The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum
Ian C Bartrum
This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.
The Modalities Of Constitutional Argument: A Primer, Ian C. Bartrum
The Modalities Of Constitutional Argument: A Primer, Ian C. Bartrum
Ian C Bartrum
This piece is a contribution to Linda Edwards upcoming book Readings In Persuasion: Briefs That Changed the World (forthcoming Wolters Kluwer). In it I offer a short primer on the modalities of constitutional argument, as Philip Bobbitt has described them. As someone who teaches Constitutional Law with the primary goal of educating future practitioners, I have always brought Bobbitt’s very practical (while also very theoretical) work into my classroom discussions. I have regularly used the first chapter of Bobbitt’s Constitutional Interpretation as introductory text on the subject, but I have sometimes found the reading to be too long and/or theoretical …
Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum
Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum
Ian C Bartrum
Philip Bobbitt’s remarkable work describing the ‘modalities’ of constitutional argument is an immense contribution to the study of constitutional law. He describes a typology of six forms of argument alive in our interpretive practice, and offers a limited account of how these modalities interact, and sometimes conflict, in actual constitutional decisions. One of the persistent puzzles Bobbitt’s description leaves open, however, is how we should account for the choice between conflicting modalities in cases where that choice is likely outcome-determinative. Because the modalities are ‘incommensurable’—a term’s meaning in one modality may not be fully translatable into another—there is no internal …
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
Brannon P. Denning
Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …