Studies in Law, Politics and Society: Volume 28

The author argues that the familiar distinction between interpretive and non-interpretive theories of constitutional interpretation obscures another important distinction: that between hermeneutically open and hermeneutically closed theories. Closed theories seek resolution to constitutional conflict by employing methods of interpretation that are intuitively persuasive. Open theories deny that such methods are always available, and seek resolution of conflict through a combination of legal, political, and social means. The author argues that closed theories have failed to live up to their implicit promise of self-justification, and examines the practice of constitutional interpretation in Canada and Australia to support this view.

This article develops an alternative theoretical approach to the Supreme Court’s controversial electoral redistricting decisions in Shaw v. Reno (1993) and its progeny. Instead of relying on the traditional equal protection interpretation, this paper argues that controversies over electoral redistricting are at base disputes among competing visions of democracy. In the Court’s recent redistricting cases, the majority and the dissent adopted fundamentally different visions of democracy – Individualist Democracy and Democracy as Power. In addition to elaborating these rival understandings of democracy, this article develops the concept of Symbolic Democracy to explain a central paradox in the Court majority’s decision: its simultaneous denial and recognition of the relevance of racial groups in representation.

This paper explores the political and legal issues contained in the law and jurisprudence surrounding missing American service personnel. It argues that the Missing Service Personnel Act of 1995 is an effect of the legacy of the Vietnam War rather than a response to a particular legal problem. The essay further contends that we should be suspicious of the effort to transform the balance sheet of war into a justiciable legal question, primarily because the requirement to produce a body fails to disarm the representational economy in which the absent body constitutes a continuation of Vietnam War hostilities.

Law attempts to govern life and death through the appropriation of images which give a fantasy of control over death. The functioning of the thanatopolitical state is underpinned by a perceived control over death and its representation. This means of controlling death is challenged when someone wishes to die in an untimely fashion. Death may be timely when the State engages in the officially sanctioned killing of the death penalty but not when the individual assumes such a power to decide. When an individual goes before the law to obtain a right to die, instead of confronting death, legal institutions evade the issue and instead talk about life, and its sacred and inviolable nature. Yet, in the same move, many exceptions to this sacred quality of life are carved out. One can see an example of this phenomenon in the area of Supreme Court decision making on physician-assisted suicide. In Washington v. Glucksberg the applicants had died by the time of the Supreme Court’s decision. Where did they go? Were they ever really there for the law? The Supreme Court decision attempts to recompose the notion of identic wholeness in the face of bodies associated with death and decay. It is, in other words, an attempt to arrest the process of death by composing a narrative which valorises life. The case becomes a narrative about the threat to life or, more precisely, a threat to a particular way of life. In other words, the state’s interest in preserving life becomes the interest in preserving the life of the state. The state must live on. The question then moves from being one of whether the individual applicant in a case concerning physician-assisted suicide should live or die, to one which asks should we the court live or die?

This article begins by exploring the development of extraterritoriality in the United States. It notes the expansion of extraterritorial provisions within federal criminal legislation and how these provisions permit prosecutors to proceed with criminal actions for conduct occurring outside this country. It also reflects on the use of an “objective territorial principle” by the judiciary, that permits criminal prosecutions whenever the conduct of the actor has a substantial effect in the United States. As an alternative to using “objective territoriality,” this article advocates for using a “defensive territoriality” approach. This article stresses the benefits of using a “defensive territoriality” approach to decide whether to prosecute an extraterritorial crime.

The progressive limits to rights mobilization have become starkly apparent in the past two decades. No new suspect classes have been forthcoming from the Supreme Court since 1977 despite continued demands for legal recognition by lesbians and gays, indigenous peoples and others interested in expanding civil rights doctrine. Public tolerance for civil rights measures has likewise dried up. Since the 1960s, referenda on civil rights have halted affirmative action programs, limited school busing and housing discrimination protections, promoted English-only laws, limited AIDS policies, and ended the judicial recognition of same-sex marriage, among other issues. Nearly 80% of these referenda have had outcomes realizing the Madisonian fear of “majority tyranny”¹ and signaling the Nietzschean dread of a politics of resentment (Brown, 1995, p. 214; Connolly, 1991, p. 64).