Here are abstracts of two new articles, together with links to SSRN:
Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory"
Harvard Journal of Law and Public Policy, Forthcoming
Georgetown Law and Economics Research Paper No. 996599
Georgetown Public Law Research Paper No. 996599
Contact: LOUIS MICHAEL SEIDMAN
Georgetown University Law Center
Email: seidman@law.georgetown.edu
Auth-Page: http://ssrn.com/author=39424
Full Text: http://ssrn.com/abstract=996599
ABSTRACT: There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional protection for gay rights think that their adversaries are not just wrong, but have exceeded the bounds of respectable constitutional argument. They want to turn the defense of gay constitutional rights into a position that dare not speak its name.
In this brief essay, I do not take a strong stand on whether the constitutional case for gay rights has been made out. Instead, I attempt to explain why these opponents are wrong to think that the case for gay rights is outside the range of reasonable constitutional argument and to speculate about why they nonetheless hold this view. While it is true that constitutional protection for gay rights depends upon contestable moral judgments, the failure to protect these rights also rests on such judgments. The argument that courts should not take a side in the ?culture war? is therefore a wash. Conservatives are nonetheless eager to discredit the argument for gay rights because the failure to do so would challenge core assumptions of standard constitutional theory.
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"Can Constitutionalism Be Leftist"
Georgetown Law and Economics Research Paper No. 999574
Contact: LOUIS MICHAEL SEIDMAN
Georgetown University Law Center
Email: seidman@law.georgetown.edu
Auth-Page: http://ssrn.com/author=39424
Full Text: http://ssrn.com/abstract=999574
ABSTRACT: In this essay, written for a symposium on the work of Mark Tushnet, I examine Tushnet's effort to defend popular constitutionalism in his powerful and subtle book entitled "A Taking the Constitution Away from the Courts," I ask whether the book succeeds in reconciling constitutionalism with leftism. If there is anyone who could accomplish this task, it is Tushnet. He is without question our most thoughtful constitutional leftist.
And yet, the book, at least taken at face value, fails to achieve its goal. To the extent that the book argues for constitutionalism, it abandons leftism, and to the extent it is leftist, it abandons constitutionalism. Tushnet's proposal can be both leftist and constitutional only by reconceiving what constitutionalism amounts to in ways I suggest at the conclusion of the essay. The failure to reconcile leftism with constitutionalism as it is more commonly understood teaches us something important: If Tushnet cannot produce this synthesis, then no one can.
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Mike Seidman
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