The Judicial Bookshelf

Some may be surprised to realize that nearly a half century has lapsed since publication of The American Supreme Court by Robert G. McCloskey. ¹ One reviewer praised the book as “unique,” one that could be read “profitably by layman, student, lawyer, and constitutional lawyer.” ² Readers familiar with that compact volume will recall the antinomy that the author put forward as the defining theme of American constitutional history: the tension between fundamental law and popular sovereignty. The latter suggests will and the former restraint. The antinomy is reflected in the founding documents of the Republic. The Declaration of Independence trumpets “inalienable rights” in the same paragraph that it emphasizes “government by the consent of the governed.” The Constitution, “ordain[ed] and establish[ed]” by “We the people,” insisted in Article VI that it “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This conflict between equally valid principles lies at the heart of judicial review in the federal courts, where appointed and politically unaccountable judges sit in judgment on the actions of the politically accountable representatives of the people. In McCloskey's view, one principle “conjures up the vision of an active, positive state; the other emphasizes the negative, restrictive side of the political problem.” ³ Opposites though these principles are, Professor McCloskey emphasized that Americans have managed to cling simultaneously to both. “But like most successes in politics and elsewhere, this one had a price. The failure to resolve the conflict between popular sovereignty and fundamental law perhaps saved the latter principle, but by the same token it left the former intact. And this meant that fundamental law could be enforced only within delicately defined boundaries, that constitutional law, though not simply the creature of the popular will, nevertheless had always to reckon with it, that the mandates of the Supreme Court must be shaped with an eye not only to legal right and wrong, but with an eye to what popular opinion would tolerate.” ⁴     

JURY DECISION MAKING MODELS AND THE SUPREME COURT: THE JURY CASES FROM WILLIAMS v. FLORIDA TO BALLEW v. GEORGIA*

This article analyzes recent U.S. Supreme Court decisions in cases relating to the size and unanimity of juries as an example of the use (and abuse) of social science by the Court in the realm of policy analysis. The four cases reviewed “cast an unflattering light on the U.S. Supreme Court's ability to integrate social science findings into public law.”     

National League of Cities and the Ephemeral Nature of Significant Supreme Court Cases

For many years, I taught third‐year law students at the Dickinson School of Law (Penn State's law school now, a private institution then) a seminar entitled “The Constitution.” For a semester we would seek to get to know the document through a careful reading of it, along with some of the works that those who wrote the Constitution would have read and some that they wrote, various essays by legal scholars and political scientists, and various Supreme Court cases. The goal was to get these budding young attorneys to try to determine what, if any, relationship there might be between what the Constitution says and what we now say it says.     

Le « modèle germanique » Français

The concept from Germany permits us to reveal, in keeping with a “misological” approach, the amplitude of the disagreements which presided over the definition of the concept of State in France. From the latter we approach diverse usages which illustrate models of State. The “germanic model” thus operates in a debate which is the crucible of modern political knowledge, with its paradoxes: those with reference to external soveignty to interstate order, to confederation. The article then exposes the relation between the theories of public law and the “continuity of assemblies”; in a certain manner, the foudation of political order. In fine, public law appears as the transfert of temporal power to the institution, to the collectivity, and its weakening as the reason of being of statism.     

(Un)Doing Constitutionalism: The Cases of Liu Xiaobo and Xu Zhiyong

Based on the cases of Liu Xiaobo and Xu Zhiyong, this article reviews the Court judgments and discussions about the criminal charges of “inciting subversion of state power” and “disrupting public order” used against Liu Xiaobo and Xu Zhiyong respectively. Through a review of the discourses of Chinese legal scholars surrounding the two cases, we focus on the conflicting arguments regarding the Chinese Constitution and the Constitutional right to freedom of expression. This article concludes with an analysis of the political meaning of the two cases by revisiting the debate about the implementation of a Constitutional review and by reflecting upon the political contention between the government’s recent re-ideologisation of the Constitution and the growing calls of Chinese citizens who advocate Constitutionalism as a proxy for political reform.     

Antonin Scalia and the Dilemma of Constitutional Originalism

Antonin Scalia has had a very significant and healthy impact on the way people talk about American constitutional law. Thanks largely to Justice Scalia’s forceful and eloquent voice, originalism is now so respectable that even those who seek to advance an aggressive and progressive “living constitution” frequently find it prudent to pose as expositors of the Constitution’s original meaning. Scalia’s substantial effect on the terms of debate in constitutional law, however, is not likely to be matched by a comparable influence on the future of the law itself. Apart from political realities that affect appointments to the Court, originalism faces obstacles that have deep historical roots. This essay explores those obstacles before considering two examples that suggest why Scalia’s originalism is unlikely to make a decisive contribution to the reformation in constitutional law that he sought.     

We Need a Loud and Fractious Poor

This article explores the political consequences of four decades of consistent humiliation of the poor by the most authoritative voices in the land, and offers insights into ways that new movements are creating spaces for poor people’s political voices to surface and become relevant again. Our specific concern is the challenge that the current humiliation regime poses to those who seek to revive radical, disruptive and fractious anti-poverty activism and politics. By humiliation regime, we mean a form of political violence that maltreats those classified popularly and politically as “the poor” by treating them as undeserving of citizenship, rights, public goods or resources, and, importantly, that seeks to delegitimate them as political actors. Our article demonstrates the historical importance of authoritative voices in inspiring political unrest involving poor and working people, charts the depoliticising effects of poverty politics and governance since the 1980s, and highlights the new political possibilities that are surfacing now not just to defeat the very dangerous political forms of Trumpism and the new white nationalism but that seek as well to create something that looks like justice, freedom and equality. We insist on the importance of loud and fractious poor people’s politics and call on scholars to direct attention to the incipient political potentialities of poor people today.     

It Doesn't Matter: Some Cautionary Findings About Sex and Representation From School Committee Conversations

One of the most important findings in the field of gender and politics is that women elected officials at the state and national levels do a better job than men of representing the interests of women, children, and families. This paper uses school committees to ask the same question about women elected officials at the local level. Thus the question that guides this paper is: Does it matter for women if women are elected to this local political institution? If it does matter, then we should “hear” women's distinct ways of participating through their discussions at committee meetings. The study finds, in contrast, that in this political institution women and men behave in remarkably similar ways when separated by committee roles, and that women elected officials in this political institution spend very little time addressing issues affecting girls in public education.     

Rethinking the Polis: Implications of Heidegger's questioning the political

Heidegger's thought has, in recent years, been relentlessly examined for glimpses of the political. This paper approaches that debate by looking at one of themes of Heidegger's lectures during the Nazi years: one which explicitly questions the notion of the political itself. This questioning, through a rethinking of the Greek word πóλις [polis], is a result of Heidegger's retreat from his own political involvement. Heidegger's active political career was theoretically underpinned by his interpretation of Plato's call for philosopher-kings: his rethinking is important in understanding his turn away from Nazism. In his rethinking Heidegger suggests that looking at the polis with our modern, political, eyes does not give us fundamental insights into the meaning of this word. Heidegger looks to the choral ode in Sophocles' Antigone, and focuses on a line which begins “hypsipolis apolis”. Through a detailed reading, Heidegger suggests that polis should be understood not as “city” or “state” but as “site”, the historical site of being. We cannot use our modern understanding of politics to understand the polis, but we can use our understanding of polis to rethink the notion of the political. The political, means relating to the site of abode of human history, and is therefore primarily spatial, or better, platial. Such an understanding allows us to understand Heidegger's work on technology from a better position; to distance ourselves from the modern, Schmittian notion of the political; and to rethink the principle concepts of politics with due attendance to the role of space, or place.     

Controlling Forum Choice and Controlling Policy: Congress,Courts and the IRS

Considerable scholarly attention has been paid to litigation and its influence on social and bureaucratic policy. One area of research has focused on interest group litigation. Another area of scholarship has shown that Congress encourages individual use of the courts to monitor and control bureaucratic behavior. In several areas of law, litigants have a choice of forum by deliberate legislative design, which is sometimes derided as “forum shopping.” Little attention has been paid to the dominant national political coalition's ability to encourage forum shopping through legislation and the appointment process. One area of law that the coalition can encourage forum shopping is in challenging tax audits. It can do so through implict legislative signals and the appointment process to influence litigants to sue the Internal Revenue Service in the forum that offers the litigant the greatest chance of success. Given the prominent role of courts in setting and determining policy and given the particular prominence of taxes and tax policy over the past three decades, whether and where tax litigants choose to sue is critically important to understanding the dynamics of both tax policy and tax enforcement, as well as public policy creation and change. To demonstrate the influence of political forces on tax forum choice, I compare tax and district court filings from 1994 through to 2000. I find that as the Tax Court and national political coalition become more conservative, more taxpayers sue in the Tax Court and this “forum shopping” choice is supported by the national political coalition.     

The People's Climate March: Environmental populism as political genre

Contemporary political ecological research on populism has demonstrated how authoritarian and strongarm tactics come to be hitched to reductive symbolic representations of “the people,” often with disastrous environmental impacts. Advocates of “left-populism” argue that such research can give the erroneous impression that “populism” and “authoritarianism” are essentially synonymous. Skeptical of formalist arguments, Gramscians argue that populism, as a quite variegated and fundamentally spatial phenomenon, must be viewed historically, in situ. But all three arguments share a quick assessment of populism, without always attending to its embedded multiplicity. Bringing together insights from Stuart Hall and Lauren Berlant, this article seeks to expand geographical understandings of the dynamic forms and styles of environmental politics by proposing thinking of populism as a political genre. This theoretical schema helps to cut through formalist versus historicist debates while directing attention to the affective scenes through which populism is performed. In order to demonstrate the utility of examining populism's genre and scenes, I examine political essays written surrounding the 2014 People’s Climate March. Essays debated activist expectations concerning political subjectivity, tactics, scales of action, signifiers, and aesthetics for best confronting global inequality and the climate crisis alike. Through contesting the meaning of “the people” and “populism,” divergent leftist political interpretations both repeated and tweaked generic populist forms. By examining the performative construction and contestation of “the people” through languages and spaces of climate action, I advocate a humble yet still critical political ecological approach to understanding contemporary populism.     

The Policy Sciences of Social Media

Twitter, Facebook, and other social media are increasingly touted as platforms not merely for networks of friends and for private diversion, but as vehicles that allow ordinary people to enter and influence the many arenas of public life. On the surface, the disparate and shapeless population of “i‐reporters,” policy “tweeters,” and anonymous news web site “commentators” would appear to challenge the comparatively well‐defined cast of professional diplomats, journalists, and propagandists that Harold D. Lasswell identified as policy‐oriented communicators. However, to illuminate the roles and impacts of social media in politics and policymaking, insights from Lasswell's “science of communication” must be embedded in Lasswell's broader lessons on value assets and outcomes. A closer look at the so‐called democratizing functions of social media in politics reveals the influence of powerful intermediaries who filter and shape electronic communications. Lasswell's insights on the likelihood of increased collaboration among political elites and skilled, “modernizing intellectuals” anticipates contemporary instances of state actors who recruit skilled creators and users of social media—collaborations that may or may not advance experiments in democracy. Lasswell's decision process concept is deployed to discover social media's strengths and weaknesses for the practicing policy scientist.     

The Mediation of the Distinction of “Religion” and “Politics” by the UK Press on the Occasion of Pope Benedict XVI’s State Visit to the UK

Abstract

One feature of modern political liberalism is its acceptance of the superiority of secular political reasoning over faith-based reasoning where matters of practical politics are concerned. The distinction religion/politics has become a defining feature of modern political liberalism. We examined how this distinction was mediated by the UK national press through a case study of its reporting of Pope Benedict XVI’s state visit to the UK in 2010. The case study evaluates the following four propositions: (1) “religion” is benign and relevant to “politics”; (2) “religion” is malign and relevant to “politics”; (3) “religion” is assumed to be irrelevant to “politics” but is dismissed positively; and (4) “religion” is regarded as irrelevant to “politics” but is dismissed negatively. We conclude there is a dominant shared assumption in the UK press supporting propositions two and three: that religion is a good thing when it conforms to a pre-existing narrative of political liberalism and a bad thing when it does not and that religion was judged in terms of its “political” values rather than in terms of its “religious” values.     

Lex: A Study on Medieval Terminology for Religion

Medieval Christian authors frequently employed the Latin word lex (“law”) and its vernacular cognates to mean something akin to the modern notion of “religion.” Like a religion, a lex was the collection of observances that marked a particular people‐group, such as Christians or Muslims. This article examines the category of lex in its historical context revealing both its similarities and differences from modern “religion.” It argues that the category of lex borrowed on Roman ethnography and Patristic exegesis and was inseparable from larger Christian ideas about society, human nature, and political order.     

Building a City For “The People”: The Politics of Alliance‐Building in the Sydney Green Ban Movement

How can we act to contest urban injustice? This article grapples with this question through an analysis of the green ban movement that emerged in Sydney in the 1970s. For a time, this unruly alliance of construction workers, resident activists, and progressive professionals powerfully enacted a radical right to the city, blocking a range of unjust and destructive “developments” worth billions of dollars and proposing alternative development plans in their place. Drawing on archival research, I demonstrate how the figure of “the people” was crucial to their action. The article examines the rights and the authority that was invested in “the people” by green ban activists, and traces the work of political subjectification through which “the people” was constructed. “The people” was not invoked as a simple majority or as a universal subject whose unity glossed over differences. Rather, in acting as/for “the people”, green ban activists produced a political subject able to challenge the claims of elected politicians, bureaucrats and developers to represent the interests of the city. The article concludes with reflections on the implications of this construction of “the people” for urban politics today.     

From Normative Debates to Comparative Methodology: The Three Waves of Post-Charter Supreme Court Scholarship in Canada

This article surveys the literature on the Supreme Court of Canada following the 1982 introduction of the Canadian Charter of Rights and Freedoms, and argues it has taken place in three distinct “waves.” The first involved tentative, prospective, and normative arguments about the impact of the Charter on national unity and Canada’s political institutions. The second was characterized by the legitimacy debate, the dialogue debate, and qualitative examination of how other political actors responded to Supreme Court decisions. By contrast, the third wave, initiated by American scholars drawing from American research, has been less normative, more comparative, and methodologically rigorous. While this comparative shift has been beneficial, the retreat from normative questions contributes to a misplaced sense that important debates are now settled. We urge scholars to engage in intellectual cross-fertilization by drawing from third-wave contributions to address normative questions about the Supreme Court’s increasingly important role in Canadian politics.     

Rousseau,Pufendorf and the eighteenth-century natural law tradition

The relationship between the political theory of Rousseau and modern natural law continues to be the subject of debate, both with regard to Rousseau's faithfulness to the idea of natural law itself and regarding the precise extent of the debt he owed to his predecessors. In this article the author re-examines this relationship by focusing attention on what has been defined as the protestant tradition of natural law. In particular she concentrates on the political and theoretical exercise that Jean Barbeyrac had sought to perform by constructing a particular version of this tradition, namely that of using the science of natural law to promote a policy of tolerance between protestants and to justify the right of citizens to resist catholic sovereigns who denied them religious freedom, as well as the right of protestant countries to come to the aid of persecuted fellow believers. The thesis asserts that Rousseau was fully aware of this exercise, just as he was aware that some of Barbeyrac's ideas had been adopted and reworked by another illustrious Genevan, Jean-Jacques Burlamaqui, a member of the Small Council, to support anti-populist and antidemocratic politics in Geneva. Viewed in this way it is possible to perceive in Rousseau's political thought not so much a “first crisis” of natural law as an intention to reformulate this science from a republican perspective in order to derive rigorous principles of political law from it. And in developing his republican political theory Rousseau took up and overturned the analysis of democratic sovereignty carried out by Pufendorf, who in opposing the “pro-monarchist” excesses of authors such as Hobbes and Horn had unhesitatingly demonstrated the complete validity of democratic sovereignty.     

德意志之名:德国国名的起源与国号的演变

现代德语中,德国国名“Deutschland”一词起源于中世纪早期日耳曼民族语言的名称“theodiscus”“diutisk”等词,具有语言、民族、地理和政治等多个层面的含义。国号中通常会包含国名的地理或民族因素,但长期以来,德国特殊的政治体制和政治形态导致中世纪时期大部分德国国号与自身的地理和民族名称相分离。直到1871年,“德意志”(Deutsch)才成为德国国号的主要部分;1949年,“德国”(Deutschland)才成为国号的组成部分。德国的国号根据历代统治者政治理念的改变而不断变化。通过考察德国国名的起源与国号的演变,可以更为深刻地理解德国历史的特殊性和延续性。     

Governmentalities of Urban Crises in Inner‐city Athens,Greece

Through the notion of “conjuncture” this paper explores the interplay of urban crises that have been unfolding in the city of Athens during the past 7 years (2008–2014). By focusing on specific “critical moments” that have significantly influenced the narratives, discourses and subsequent policies concerning “Athens in crisis”, it examines a number of intertwined approaches and tactics that shaped the governmentality of such crisis. These approaches and tactics, that work in tandem, include emergency‐driven policies and politics; politics of fear that occasionally transform into geographies of fear; processes of defining the “public” and “public enemies”; and redefinitions of (il)legalities. Yet, they have repercussions on people, places and politics. In this context, certain issues are deemed critical or urgent while others do not or are even obscured.     

洋务新政时期普通士人的思想转型——以江顺诒为中心

在晚清洋务新政背景下,江顺诒虽屈居下僚,然能以通时务、达事权为奋斗目标。在中外文明比较中,除了对基督教有所批评外,对西洋商业文明、政治制度等多持肯定态度。虽给人"抑中而扬外"的印象,然实则是以"西学中源"为底色的一种"尊西方——超西方"的路径。在古今之变上,并非由"泥古"到"求新"的简单转型,而是务求实用,主张"泥古"、"背古"皆非,以富强为目标的社会发展观。他从一个普通知识分子的角度,回应了洋务新政所带给人们价值观的新变化。