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Jamal Greene

Bio: Jamal Greene is an academic researcher from Columbia University. The author has contributed to research in topics: Originalism & Constitutional law. The author has an hindex of 7, co-authored 20 publications receiving 152 citations.

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Journal Article

43 citations

Journal ArticleDOI
Jamal Greene1
TL;DR: Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener as discussed by the authors, is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discourses that make constitutional law a distinctive form of politics.
Abstract: Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse — think of “Poor Joshua!” — but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discourses — text, history, structure, precedent, and consequences — that make constitutional law a distinctive form of politics. Normatively, appeals to emotion are most easily justified in opinions that seek to declare rather than apply law; in separate writings; when addressed to accepted subjects of constitutional argument rather than the ultimate outcome in the case; and when they arouse other-regarding rather than self-regarding emotions. A nuanced account of the proper place of pathetic argument in constitutional law is instrumental to understanding what it means to engage, and not to engage, in constitutional discourse.

25 citations

Posted Content
Jamal Greene1
TL;DR: For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States as mentioned in this paper, and recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism.
Abstract: For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common-law adjudicative norm, but whose judicial cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our popular and judicial culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument, and that the domestic debate over originalism should be understood in ethical terms.

14 citations

Journal ArticleDOI
Jamal Greene1
TL;DR: For example, this article pointed out that originalism is a form of ethical argument in the United States and argued that the domestic debate over originalism should be understood in ethical terms.
Abstract: For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer six hypotheses as to the influences that sensitize our own culture to such historicism: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial-nomination process in the United States; accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument and that the domestic debate over originalism should be understood in ethical terms. I. Introduction For the last quarter-century, originalism has been the idiom of judicial restraint in the United States. Originalism's proponents defend it as uniquely appropriate to judging in a constitutional democracy because, unlike its competitors, originalism offers articulable and transparent criteria for discerning the meaning of ambiguous constitutional texts. Without the discipline originalism enforces, judges are free to decide cases according to metrics that are either impermissible - their naked policy preferences, say - or too opaque to impose the public accountability the judicial role demands. Despite sustained criticism that has discredited originalists within certain corners of the legal academy, the originalism movement is a success by numerous measures.1 As others have remarked, the Court's recent decision in District of Columbia v. Heller2 was less interesting for its result, which was widely anticipated, than for the fact that Justice Stevens's lengthy dissent spent so much space parsing the views of eighteenth-century Americans on the meaning of the Second Amendment's text.3 As Part II of this Article details, originalism is a recurring topic of discussion in newspaper editorials, on blogs, on talk radio, and at confirmation hearings, and consistently large numbers of Americans report in surveys that they believe Supreme Court Justices should interpret the Constitution solely based on the original intentions of its authors.4 In light of the claims to singular democratic legitimacy made on originalism' s behalf, and given the evident sympathy of many Americans toward those claims, it is curious that originalism is so little celebrated outside the United States. The notion that the meaning of a political constitution is, in any practical sense, fixed at some point in the past and authoritative in present cases is pooh-poohed by most leading jurists in Canada, South Africa, India, Israel, and throughout most of Europe, and the text-bound "original meaning" version of originalism that has been ascendant in recent years in the United States is on the wane in Australia. The global rejection of American-style originalism would be understandable if constitutional judges in other democratic countries either were ignorant of originalism' s claims to judicial restraint or were discouraged from such restraint altogether, but neither is true. The charge of judicial activism is neither unique to nor uniquely stigmatic within American constitutional discourse,5 and for all the hostility many originalists show toward importing foreign jurisprudence into American constitutional interpretation, the domestic originalism movement has not been reticent in seeking to export itself abroad. …

11 citations

Posted Content
Jamal Greene1
TL;DR: The Court's move from privacy to liberty as a constitutional basis for the freedom to make fundamental life decisions strengthened the rights themselves by anchoring them to constitutional text in a text-happy era, and represents a victory for Justice Stevens who has long advocated such a shift as mentioned in this paper.
Abstract: The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the 'so-called' right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its proponents on the Court as aspects of constitutional privacy. Other rights that might be protected by a constitutional right to privacy, such as the right to refuse medical treatment or the right to assisted suicide, are either justified on liberty grounds or are not constitutionally protected at all. The Court’s move from privacy to liberty as a constitutional basis for the freedom to make fundamental life decisions strengthens the rights themselves by anchoring them to constitutional text in a text-happy era, and represents a victory for Justice Stevens, who has long advocated such a shift.

10 citations


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3,628 citations

Journal Article
TL;DR: Books and internet are the recommended media to help you improving your quality and performance.
Abstract: Inevitably, reading is one of the requirements to be undergone. To improve the performance and quality, someone needs to have something new every day. It will suggest you to have more inspirations, then. However, the needs of inspirations will make you searching for some sources. Even from the other people experience, internet, and many books. Books and internet are the recommended media to help you improving your quality and performance.

340 citations

Journal ArticleDOI
TL;DR: Woodward as mentioned in this paper discusses the ante-bellum era (1789-1860) and Reconstruction (1865-1877) and examines the era of "forgotten alternatives" in Southern race relations between 1870 and 1900.
Abstract: Woodward’s argument proceeds along chronological and thematic lines. Chapter one discusses the ante-bellum era (1789-1860) and Reconstruction (1865-1877). Chapter two examines the era of “forgotten alternatives” in Southern race relations between 1870 and 1900. Chapter three examines what Woodward calls the “capitulation to racism” around the turn of the century. And, finally, chapter four examines the “turning point” in race relations that occurred between the 1920s and 1940s in the South.

286 citations