Constitutional Law

Modern legal scholarship

Here's a synopsis of an upcoming Villanova L. Rev. article. It isn't often that I can read a synopsis of an article and have not the foggiest what it is saying---

"Engaging with Michael Seidman?s contribution to the symposium, I close the essay in suggesting that when, as in Mark Tushnet?s suggestive orientation to ?the Other? just before the end of the essay ?Defending Korematsu?,? he sees the Other face to face, he extends an invitation to read in his most recent constitutional law scholarship a resurgence of the orientation to Others that was the ground of his scholarly work, and thus to conclude that one does not have to move from the realm of hermeneutics to that of metaphor, as Seidman suggests is necessary, to identify his commitment to what is paradoxically a certain kind of ?thick? constitutionalism, which conceives of it as something more than a bare practice for allocating political power in the nation-state, necessarily implying some ethical engagement between subjects who govern and those who are governed.

That commitment is premised on a ?thin constitution? that promises two things. First, that it might shield us and Others from at least the worst excesses of the violence of state tyranny. Second, it encodes what may be cynical rhetoric, aspirational constitutive national text, denial that is admission of the originary national pathology that eats out the nation?s core, or all of these things. That is, a commitment to equality in a nation with a government which Thurgood Marshall called ?defective from the start,? founded on chattel slavery and persistently unwilling to address that inheritance from the Founders, a pervasive structural subordination of Others that imbricates its fiber yet."

Full post as published by Of Arms and the Law on June 19, 2008 (boomark / email).