Postmodernism, or, the Cultural Logic of Late Capitalism

This is a review of Collected Works of John Tate. Parts I, II, edited by Barry Mazur and Jean-Pierre Serre. American Mathematical Society, Providence, Rhode Island, 2016. For several decades it has been clear to the friends and colleagues of John Tate that a “Collected Works” was merited. The award of the Abel Prize to Tate in 2010 added impetus, and finally, in Tate’s ninety-second year we have these two magnificent volumes, edited by Barry Mazur and Jean-Pierre Serre. Beyond Tate’s published articles, they include five unpublished articles and a selection of his letters, most accompanied by Tate’s comments, and a collection of photographs of Tate. For an overview of Tate’s work, the editors refer the reader to [4]. Before discussing the volumes, I describe some of Tate’s work. 1. Hecke L-series and Tate’s thesis Like many budding number theorists, Tate’s favorite theorem when young was Gauss’s law of quadratic reciprocity. When he arrived at Princeton as a graduate student in 1946, he was fortunate to find there the person, Emil Artin, who had discovered the most general reciprocity law, so solving Hilbert’s ninth problem. By 1920, the German school of algebraic number theorists (Hilbert, Weber, . . .) together with its brilliant student Takagi had succeeded in classifying the abelian extensions of a number field K: to each group I of ideal classes in K, there is attached an extension L of K (the class field of I); the group I determines the arithmetic of the extension L/K, and the Galois group of L/K is isomorphic to I. Artin’s contribution was to prove (in 1927) that there is a natural isomorphism from I to the Galois group of L/K. When the base field contains an appropriate root of 1, Artin’s isomorphism gives a reciprocity law, and all possible reciprocity laws arise this way. In the 1930s, Chevalley reworked abelian class field theory. In particular, he replaced “ideals” with his “idèles” which greatly clarified the relation between the local and global aspects of the theory. For his thesis, Artin suggested that Tate do the same for Hecke L-series. When Hecke proved that the abelian L-functions of number fields (generalizations of Dirichlet’s L-functions) have an analytic continuation throughout the plane with a functional equation of the expected type, he saw that his methods applied even to a new kind of L-function, now named after him. Once Tate had developed his harmonic analysis of local fields and of the idèle group, he was able prove analytic continuation and functional equations for all the relevant L-series without Hecke’s complicated theta-formulas. Received by the editors September 5, 2016. 2010 Mathematics Subject Classification. Primary 01A75, 11-06, 14-06. c ©2017 American Mathematical Society

The collected works

Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, W. Wesley Pue, Fatou Camara, and Dianne Kirkby. This paper introduces the volume, forthcoming in late 2007. The central problematique of this issue has previously been explored through the 2005 Law's Empire conference, an informal but vibrant postcolonial legal studies network.

Law's Empire

Taking Rights Seriously.

New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing 'insurance' to prospective electoral losers, judicial review can facilitate democracy.

/pdf/judicial-review-in-new-democracies-constitutional-courts-in-221309ao4p.pdf

Judicial Review in New Democracies: Constitutional Courts in Asian Cases

The recent impeachment of President Bill Clinton has called attention to the only other presidential impeachment in American history, that of Andrew Johnson in 1868. Parallels between the two cases have been drawn to suggest that both were unjustified attacks on the presidency by a partisan Congress. Such comparisons have also suggested that the Clinton impeachment will result in a weakened presidency, just as the Johnson impeachment ushered in an era of congressional government in the nineteenth century. This paper argues that such comparisons are misguided. Although both impeachments were organized along partisan lines, the Johnson impeachment, unlike the Clinton impeachment, was constitutionally substantive, constructive rather than mechanical in its constitutional application, and focused squarely on the presidency as an institution. Both the substantive content and the political context of the Johnson impeachment contributed to a weakening of the presidency. The Clinton impeachment, by contrast, is unlikely to have any significant, long-term institutional implications. A comparison of the two impeachments also counsels against formalistic efforts to further define "high crimes and misdemeanors."

Bill Clinton Was No Andrew Johnson: Comparing Two Impeachments

Part of Symposium: The interpretation/construction distinction in constitutional law: Annual meeting of the AALS Section on Constitutional Law.

/pdf/constructing-a-new-american-constitution-5ddlro4ugj.pdf

Constructing a New American Constitution

Predominant empirical theories of judicial review indicate that the Supreme Court should be more likely to strike down legislation passed by its partisan and ideological opponents and uphold against constitutional challenge legislation passed by its allies. This article introduces an original dataset composed of all cases in which the Court substantively reviewed the constitutionality of federal statutes from 1789 through 2006 in order to provide a substantial test of these expectations across the full range of American history and across the full range of judicial review. The evidence suggests that ideologically distant legislation is more likely to be facially invalidated by the Court, but is no more likely to be struck down as applied in particular cases. The Court is more likely to strike down statutes as applied when they are being implemented by ideologically distant administrations, however. Laws adopted under conditions of divided government are much more likely to be upheld than are others that come under review by the Court. Although older statutes are more vulnerable to as-applied invalidations, they are less vulnerable to facial challenges than are more recent statutes. Contrary to common expectations, controlling for ideological factors, relatively unimportant statutes are not more vulnerable to judicial invalidation than important statutes and the presence of government lawyers arguing the case does not help preserve statutes against challenge.

Ideology, Partisanship, and Judicial Review of Acts of Congress, 1789-2006

Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. The Court has become less likely to strike down federal laws, but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberals justices to the Court who could press the constitutional views that are now most often expressed in dissent.

The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review

Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics. (1) This is no surprise given the history of modern originalist theory and constitutional politics. Although originalist arguments have a long pedigree, self-conscious originalism in its modern form largely arose as a response to the liberal constitutional decisions of the Warren and Burger Courts. (2) Judges and scholars turned to history to explain why they thought that the Supreme Court had not only gotten the constitutional law wrong, but had also acted illegitimately in making its rulings. (3) These kinds of critiques culminated in the Reagan administration, the creation of the Federalist Society, and the mobilization of a conservative legal movement that embraced originalism as a core commitment. (4) As a result, many conservatives embrace originalist arguments, and the public often associates originalism with conservatives. The more troubling issue is not whether the public associates originalism with conservatives or conservative politics, but whether originalism is a rationalization for conservatism. Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically compelling independent of its connection to conservative politics, or is originalism simply a means to the end of achieving a set of constitutional doctrines that conservative politicians and interest groups prefer? Might originalism be justifiable independent of any reference or commitment to conservative constitutional law outcomes? Might it appeal to political liberals? Or must one already have committed to conservative politics to find any value in constitutional originalism? This Essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism. The association of conservative politics with originalism is not accidental, however, and conservatives are generally more likely than liberals to find originalism a normatively attractive approach to constitutional interpretation. This Essay considers the ways in which originalism both intersects with and diverges from conservatism. In doing so, it will consider originalism from two different perspectives that raise somewhat different issues. Part I will focus on originalism as a method of constitutional interpretation. Part II will focus on originalism as a political theory of judicial review and constitutional authority. Before pursuing this inquiry, there are some issues worth mentioning but beyond the scope of this Essay. First, this Essay will not delve into the question of what originalism is. It will treat originalism with a broad brush, and not make fine distinctions among different schools of originalist thought. For present purposes of this Essay, the aim is to be catholic in this discussion of originalism, and any more particular points about originalism should be clear in context. (5) Second, this Essay will bracket the question of whether individual judges or particular political actors are, in fact, principled or consistent adherents to originalism. (6) It is an interesting empirical question whether a judge adheres to any principled theories of either constitutional interpretation or the judicial role, let alone whether a judge adheres to originalism in particular. (7) Scholars have long investigated, and struggled to answer, that empirical question. (8) Ultimately, however, the results of such an investigation would not help answer the question addressed herein. There is little doubt that originalism can be used to rationalize and legitimate conservative results; many other forms of constitutional argument and theorizing can also do so. But asserting such a general contention about the theory on the basis of some examples of flawed practice is no more compelling than arguing that "doctrinalism is a rationalization for conservatism" on the basis of examples of bad doctrinal arguments made in the service of reaching conservative results. …

Keith E. Whittington

Papers

Bill Clinton Was No Andrew Johnson: Comparing Two Impeachments

Constructing a New American Constitution

Ideology, Partisanship, and Judicial Review of Acts of Congress, 1789-2006

The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review

Is Originalism Too Conservative