Neglected Policies

Strauber Ira L. Strauber

Description

In Neglected Policies, Ira L. Strauber challenges scholars and critics of constitutional jurisprudence to think differently about the Constitution and its interpretation. He argues that important aspects of law, policies, and politics are neglected because legal formalisms, philosophical theories, the reasoning of litigators and judges, and even the role of the courts are too often taken for granted. Strauber advocates an alternative approach to thinking about the legal and moral abstractions ordinarily used in constitutional decision making. His approach, which he calls "agnostic skepticism," interrogates all received jurisprudential notions, abandoning the search for "right answers" to legal questions. It demands that attention be paid to the context-specific, circumstantial social facts relevant to given controversies and requires a habit of mind at home with relativism.Strauber situates agnostic skepticism within contemporary legal thought, explaining how it draws upon sociological jurisprudence, legal realism, and critical legal studies. Through studies of cases involving pornography, adoption custody battles, flag burning, federalism, and environmental politics, he demonstrates how agnostic skepticism applies to constitutional issues. Strauber contends that training in skeptical critique will enable a new kind of civic education and culture-one in which citizens are increasingly tolerant of the ambiguities and contradictions inherent in the law and politics of a pluralistic society.Using insights from the social sciences to examine the ways constitutional cases are studied and taught, Neglected Policies will interest scholars of jurisprudence, political science, and the sociology of law.

Sujets

• Droit et juridique
• USA
• États-Unis

Informations

• Publié par: Duke University Press
• Date de parution: 06 septembre 2002
• Nombre de lectures: 0
• EAN13: 9780822384267
• Langue: English

Extrait

Neglected Policies

N E G L E C T E D P O L I C I E S

Constitutional Law and Legal Commentary

as Civic Education

Ira L. Strauber

Duke University Press

Durham and London 2002

∫2002 Duke University Press All rights reserved Printed in the United States of America on acid-free paper$ Typeset in Scala by Keystone Typesetting, Inc. Library of Congress Cataloging-in-Publication data appear on the last printed page of this book.

In blessed memory of Abe Strauber

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C O N T E N T S

Acknowledgments Introduction 1

ix

P A R T I The Purposes of an Interpretive Community Formalisms: An E≈cacious Enemy of Politically Su≈cient Commentary 36 Skepticism and Neglected Politics 52

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P A R T I I Formalisms: Facets of Political Power and Neglected Policies 67 The Internet: Distorted Ideals and Practices 91 Agnostic Skepticism about Radical Rejectionism 104 Agnosticism, Federalism, and Constitutionalism A Middle Course on Reform 142 Ordered Liberty and Political Morality 160

P A R T I I I Deeper Skepticism 179 Qualified Solace in the Law’s Formalisms Qualified Solace in Agnosticism 220

Notes 227 Bibliography Index 259

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A C K N O W L E D G M E N T S

All things considered, it has taken a rather long time for this book to come to print. There are three main causes for that, the second and third of which I would not change even if I had the power to do so. First, I wrote this book almost as much to convince myself of the merits of its arguments as to persuade others to take those arguments seriously. And, in keeping with the spirit of the main theme of this book, I was as per- sistently skeptical of my own arguments as I could possibly be. Conse- quently, and for better or worse, this skepticism compelled me to confront my limitations in answering the questions I posed to myself about consti- tutional commentary as civic education. Perhaps those with fewer limita- tions, or those better at surmounting them, might have completed this book much sooner. Second, this book took its own time because I was fortunate to benefit from the hard work of a number of people who were careful, sometimes (if not often) severe, and always especially constructive skeptics of what I was trying to do. Leif H. Carter read a number of earlier, rather di√erent drafts of the manuscript, and his astute and sympathetic analysis of it compelled me to reconsider just how much more work I needed to do to make it a publish- able work. Susan Strauber brought to the final version of this manuscript the same scrupulous attention to linguistic detail that she brings to her own work in art history. However frustrating that scrutiny was to endure, it compelled me to make the internal logic of the arguments as harmonious as possible. The anonymous reviewers for Duke University Press were incisive read- ers who motivated me to meet their criticisms as best as I could. Writers cannot ask more of their reviewers. One anonymous reader in particular