Hall, Stuart — Essential Essays, Volume 1

116 published claims from this book.

• A constitutional description’s static feel reflects the observer’s participation in an evolving process.
• A constitutional grammar lets nonjudicial actors reason legally about constitutional questions.
• A critic’s argument can be structured as a detective story
• A single political boss could reverse a referendum’s outcome by letting it be resubmitted
• A society that accepts moral responsibility still faces the question of how to decide.
• Ad hominem attacks in scholarly debate often stem from feeling oneself misrepresented.
• Alternative maps of interpretation yield fresh perspective on familiar material
• Amar argues the Constitution is rule by dead white men.
• An author’s choice of what to map shapes what gets neglected.
• and their presence in our political discourse does not require us to deny them legitimacy or to corrupt our forms of decision according to law. American constitutional law can be a profoundly…
• Any external normativity contaminates practice-derived legitimation entirely.
• Balkin and Levinson conclude that I must either accept whatever is practiced or abandon my pose as simply a descriptive observer. These descriptions depend on several assumptions that I do not…
• Bobbitt asks whether Patterson believes in the pricelessness of human beings because humans are capable of love, that our decisions are impossible to explain causally because they are products of…
• Bobbitt’s appeal to conscience is not an escape hatch from the modalities.
• Both law’s traditionalists and its critics assume legitimacy requires determinate maxims
• Causalist explanations are vulnerable to an irremediable self-reference flaw
• Citizens failed to notice constitutional structures being compromised.
• Citizens remain morally responsible for atrocities committed in their nation’s name.
• Classical constitutional puzzles reduce fundamentally to questions of legitimacy and legitimation.
• Compact-theory popular sovereignty permits foreign intervention where European sovereignty does not
• Conscience resolves conflicts only at the final unreasoning act, never arbitrating between modalities.
• Constitutional argument and constitutional discourse are distinct activities with different boundaries.
• Constitutional conscience depends on faith, else it degenerates into expediency
• Constitutional doctrine develops as replications and mutations of one fundamental structure
• Constitutional interpretation and constitutional discourse are distinct practices.
• Constitutional law and jurisprudence need have only contingent historical connections.
• Constitutional law is improvisational choreography, unlike a law review’s static snapshot.
• Constitutional law’s foundational modalities derive legitimacy from use alone, not external validation.
• Constitutional understanding is cultivated through practical exercises rather than passive reading
• Construing only majestic clauses biases theorists toward single-source textualism
• Criticisms of a taxonomy of argument forms can attack either completeness or decisional adequacy.
• Critics of Bobbitt’s constitutional theory fall into three identifiable camps
• Decisions among incommensurable values remain possible without a decision rule.
• Descriptive grammarians distort living language by dissecting it into artificial parts.
• Discerning order always persists within otherwise disordered historical periods
• Early Americans did not separate individual rights from federalism limits on power.
• Entrenched formal expectations prevent critics from recognizing genre innovation.
• Every legal maxim has a counter-maxim applicable with equal plausibility
• Extra-legal justifications of judicial review lead to infinite regress
• For me, the use of the six forms of constitutional argument is the way we decide constitutional questions in the American legal culture. The use of these six forms maintains the legitimacy of…
• Forms of constitutional argument are validated by their presence in practice, not by approval
• Grammar is the set of rules enabling participation in a language game.
• Hamilton’s ends-means test determines constitutional authority of national government actions.
• I further believed that journalists, and citizens generally, could make use of these forms of legal argument, although they were not confined to legal argument in making constitutional decisions…
• Ideology is defined by an unresolved tension between historical relativity and universal truth.
• In my view, the most important part of Powell’s paper is his claim that, by declining to lecture the reader about the proper attributes of a constitutional conscience, I am portraying the…
• Information declassification overwhelmed public grasp of constitutional issues.
• Intellectual honesty may turn Tushnet’s iconoclasm against fashionable explanatory shibboleths
• Iran-Contra’s constitutional crime was executive use of nonappropriated funds.
• It is true that, in my law classes, I spend a good deal of time with students practicing various kinds of argument. Every professor does this-every one must, although perhaps usually less…
• Justifying a legal system differs fundamentally from causally explaining it through politics or psychology
• Language can distort as well as transmit human culture
• Law’s meaning requires participant-spectators whose presence makes its motion meaningful.
• Legal and non-legal deciders draw on different but overlapping argument forms.
• Legal indeterminacy is inherent and requires a justified role for conscience
• Legal meaning derives from practices of legitimation, not truth conditions.
• Legal propositions are true only within the practice’s own recognized forms
• Legal propositions are true when they invite competent professional assent.
• Legal propositions have truth conditions but defy simple truth valuation.
• Legitimacy and justification are distinct concepts in constitutional theory.
• Legitimacy can be derived from constitutional practices rather than from justifications.
• Limited government need not erase a society’s distinctive moral character
• Logical connectives derive their meaning from subjective experiences like hesitation and rejection.
• Maintaining core moral beliefs requires faith, not causal explanation
• Mathematical proof compels assent through guided decision rather than world-fact or command.
• Motivation for a ruling must be distinguished from constitutional causality
• National referenda would likely first target the income tax
• No constitutional grand theory can be comprehensive, certain, and complete simultaneously
• Obsessing over what makes legal statements true has misled jurisprudence.
• One can entertain arguments as legitimate while rejecting their conclusions as unjustified.
• One should act against criticism rather than defend against it
• Opinion arguments rationalize decisions rather than explain how they are reached.
• Popular consent legitimizes citizen enforcement of constitutional interpretation.
• Popular referenda would divert attention from governance toward identity issues.
• Portraying constitutional conscience truthfully requires offering a moral choice
• Postmodern constitutional thought marks a shift from truth to meaning.
• Postwar American legal criticism vastly exceeds earlier eras in quality and scope
• Practices are legitimate and bounded prior to any description of them.
• Practices resist reduction to explicit rules because rules cannot be both explicit and comprehensive.
• Precision in legal-method measurement has limits beyond which it becomes absurd.
• Quasi-public entities using private funds still require congressional authorization.
• Quoting someone only partially held views misattributes them.
• Referendum-driven constitutional change would destroy constitutional permanence.
• Rejecting both justification and representation is the worst of both worlds.
• Second, this would cause a vast diversion of political attention and resources in a country that is already too diverted from governance toward what one might call identity-issues.
• Skepticism belongs to belief, so faith remains fertile in a postmodern world.
• Skepticism, modernism’s tool, is itself what killed the modern project.
• Speaking a language means assuming its entire culture and civilization.
• Structuralism introduced a new kind of non-reflective causality between social and mental categories.
• The 1798 constitutional debate hinged on the source of federal sovereignty.
• The 1798 Resolutions later underpinned nullification, secession, and proslavery arguments.
• The Constitution was designed to curb, not maximize, political engagement.
• The debate arose over the fundamental question of the source of federal sovereignty. Did the Union derive its authority from the states, or the people acting through the states, or the people…
• The Declaration of Independence is the constitutional ground authorizing the Constitution
• The Declaration’s equality claim rests solely on the universal capacity for moral choice
• The detective analogy exposes a critic’s detective role also misfires comically
• The founding fear of factions was aimed at interest groups, not parties
• The polity cannot confer constitutional legitimacy on officials elected by unspecified means.
• The term normative conflates two distinct kinds of evaluation.
• Theorizing truth must account for conflicts that resist closure.
• Thus, I am prepared to entertain a great many arguments I do not endorse as legitimate; and indeed, I am able to criticize such arguments precisely because the various modalities of argument give…
• Tushnet is one of the most accomplished constitutional scholars of our period. He combines a commitment to utter honesty with a voracious intellect and an indefatigable pen. Surely, if there is…
• Understanding a linguistic practice does not require understanding larger social practices first.
• US constitutional argument forms derive from common-law modes overlaid on the state.
• When Winter discloses that ‘in effect, then, Bobbitt concedes that law faces the very predicament that Unger identifies’—that legal decisions are sometimes indeterminate—he discloses nothing…
• Winter insists that ‘the importance and ubiquity of imaginative processes such as metaphor undermine the Wittgensteinian claim that there is no more to meaning than its performative significance…
• Winter is not writing about Wittgenstein, but about the Wittgensteinian account, which I fear must mean me.
• Winter misrepresents Wittgenstein by attributing to him a composite of several thinkers’ views.
• Winter’s denial may be inconsistent with his own theory of meaning
• Winter’s entire essay is structured around such small coups de theatre, which culminate in announcements of such banality that they are made ludicrous by the portentous, jargon-ridden analysis…
• Wittgenstein conceives language-games as parts of an activity or form of life.
• Wittgenstein considered the unstated ethical dimension of the Tractatus its essential part.
• Wittgenstein denies psychological effects any necessary role in meaning while not denying their reality.
• Wittgenstein never treated practice as an isolated conceptual primitive
• Wittgenstein’s teaching-by-examples passage actually supports, not refutes, saying things about practices.
• Yet, there is scarcely a page of Wittgenstein’s work, including his work on the foundations of mathematics, that is not devoted to an attempt to rescue our understanding of meaning by linking it…