My research in political and constitutional theory has been motivated by a central question: in what ways can law and adjudication sustain the plurality of politics. I am interested in the ways judicial interventions can do more than merely constrain political choices and instead, through their reasoning and composition, illuminate the stakes and possibilities of politics itself. Theorizing this form of judicial intervention is particularly needed today—as an essential part of defending the rule of law, the separation of powers, and the international legal order from the insular pressures of nativist, xenophobic populism.
My current work on these issues spans three main areas of inquiry:
(1) American democratic constitutionalism;
(2) international law and justice; and
(3) post-national constitutionalism in the European Union.
Neither trumps nor interests: Rights, pluralism, and the recovery of constitutional judgment
In the first instance, the challenge posed by plurality concerns the future of American constitutionalism in times of great diversity and factional polarization. Beneath the search for a pluralistic law lies a foundational question: what is the relationship between judgment and pluralism? My current research addresses this question in the context of contemporary debates about methods of constitutional interpretation that legitimate judicial review in the United States.
What warrant do judges have to resolve pluralistic value disputes? And what role—beyond constraining oppressive democratic majorities or entrenched factions—can judicial review play in preserving the plurality of a democratic society?
In the constitutional tradition of the United States, one guiding light is doctrine, which can draw strength from a claim about expertise: the judicial (and lawyerly) skill is to interpret bodies of case law. But the absolutist framing of doctrinal categories also risks distorting, or simply ignoring, salient values. Hence Professor Jamal Greene’s recent powerful objection to the rights-as-trumps orientation of contemporary American constitutional law. A second guiding light—favored by Greene—is a species of cost-benefit analysis: proportionality review and balancing. But proportionality gives rise to the inverse dynamic. Although it can claim (authentically, I believe) to keep better track of salient values, it invites an objection along the lines of expertise. Put simply, why should judges be the ones doing the accounting of costs and benefits? They have neither the democratic pedigree nor—at least in the case of complex, polycentric problems—the relative competence.
To demonstrate the stakes of this criticism, the article cites decisive limitations of European jurisprudence employing proportionality analysis—and examines how such limitations align neatly with the criticisms Greene levels at American categoricalism in various areas of US constitutional law.
But this binary framing between categoricalism and proportionality does not exhaust how we might yet conceive a non-absolutist, limited understanding of rights and thus the relation between constitutional interpretation and pluralism. American constitutional theory requires, I argue, a third guiding light, which I term ‘narrative doctrinalism’. Set in a narrative frame, rights are neither Dworkinian trumps nor pragmatic interests to be balanced in proportion, but nodal points in time. They have pasts and futures that demand historically-grounded interpretation.
A key strength of this third ‘narrative’ category of constitutional interpretation is that it not only legitimates the judicial role in the face of a pluralism objection; it actually supplies a reason to think judges are better than other actors at contending with pluralism, at least insofar as we think judges are uniquely well-positioned to engage in the form of historically-situated reasoning the narrative frame prescribes. In this sense, I attempt to stand the usual account on its head: pluralism is a reason for judicial resolution, not an obstacle to it. The article applies narrative doctrinalism’s normative and methodological insights in detail to two salient cases from the Supreme Court’s prior term: Masterpiece Cakeshop v. Colorado Civil Rights Commission and Carpenter v. United States.
Concluding, the article suggests that the flawed binary opposition between rights as trumps and rights as interests in fact pervades contemporary thinking about constitutional doctrine and public law. The applicability of my critique and the positive framework of ‘narrative doctrinalism’ to other areas of law is the subject of future work.
The time of law: Europe’s crisis and the future of post-national constitutionalism
‘The fact that law is deconstructible is not bad news. We may even see in this a stroke of luck for politics, for all historical progress.’
J. Derrida, ‘Force of Law: The “Mystical Foundations of Authority”’
‘And philosophers said that the acceleration of history that had occurred in the twentieth century resulted in an indifference toward time and the demise of historicity in its traditional form, and if another form of historicity was to emerge it was necessary to slow history down, and some of them demanded that the Declaration of Human Rights should include the right to human time.’
P. Ouředník, Europeana: A Brief History of the Twentieth Century
My dissertation develops a theory of post-national constitutional law, sovereignty, and solidarity that draws on conceptions of identity and time from across Anglo-American legal theory, Continental political and ethical thought, and European jurisprudence. Taking the legal pluralism of the European Union as a point of departure, my central argument is that the legitimacy and motivating power of post-national legal commitment turn on the place of narrative in law: a sensitivity to how narratives structure constitutional claims and how law succeeds (or fails) to make political agency intelligible over time. The theory clarifies, in particular, the counterintuitive, perhaps paradoxical importance of law’s rhetorical, affiliative, and affective dimensions for cosmopolitan political practice and global justice. This temporal perspective also helps reimagine the normative basis of Europe’s elusive model of ‘shared sovereignty’ in terms of narrative agency among peoples. I use this account to explore the limits and possibilities of contemporary EU institutions and European citizenship law–as well as the continuing relevance of the European project, more broadly–in responding to today’s fragile task of rebuilding a common political will for international solidarity across core and periphery and for the protection of fundamental human rights.
Table of Contents
A more detailed abstract, an expanded table of contents, and the first section of the introductory chapter is available below:
‘Saving judgments: Discourses of authority in European asylum law’ (working paper)
‘History, system, principle, analogy: Four modes of legitimation in European Union law’ (working paper)
‘Post-national constituent power: An Arendtian reconstruction of mixed sovereignty’ (working paper)
‘Constitutional patriotism as post-national public philosophy: On constitutional culture and time’ (working paper)
‘Narrative constitutionalism: A “commitmentarian” account of constitutional pluralism in Europe’ (in progress)
‘Clusters: On duties, hegemony, and a new politics of international human rights’ (in progress)
‘A constitution as world: Hannah Arendt and Robert Cover on law and social integration’ (in progress)
‘Existentialism and the law: On populism, political being, and the legal romantic’ (in progress)
‘Havel’s Europe: A political vision of responsibility and hope’ (in progress)
‘Self-determination of peoples: International law, narrative, and points of recognition’ (in progress)
(Image: Zdeněk Sýkora, “Lines 72”, 1990, oil on canvas, detail.)