Law Commons^™

Constitutional Rights And Judicial Independence: Lessons From Iowa, Ian C. Bartrum

Scholarly Works

Iowa held its 2010 judicial retention elections in the shadow of Varnum v. Brien, the 2009 Supreme Court opinion recognizing same sex marriage. As the result of highly politicized campaign, three talented jurists lost their seats on the Court.

This commentary examines that election and offers a structural solution that might better protect constitutional rights against majoritarian intimidation.

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

Scholarly Works

This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

Scholarly Works

This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it the author adapts some of his earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction.” The author makes two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, the author doubts the ultimate utility of the distinction as part of a “true and correct” model …

Metaphors And Modalities: Meditations On Bobbitt’S Theory Of The Constitution, Ian C. Bartrum

Scholarly Works

This article builds on Philip Bobbitt's remarkable work in constitutional theory, which posits a practice-based constitution based in six accepted "modalities" of argument. I attempt to supplement Bobbitt's theory - which has a static and exclusive quality to it - with an account of interpretive evolution based in Max Black's interaction theory of metaphors. I suggest that we can (and do) create constitutional metaphors by deliberately overlapping Bobbitt's modalities of argument, and that through these creative acts we can grow the practice of American constitutionalism. I then present case studies of this metaphoric process at work in three fields of …