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Source: www.livejasmin.com
Where Do Constitutional Modalities Come From? Complexity Theory and the Emergence of Intradoctrinalism
This article seeks to shed light on one of the most vexing and important problems in constitutional law and theory: how courts interpret the Constitution. Part I of the article begins by recounting the major theories of how courts should interpret the Constitution. Part I then explains why many scholars agree that Philip Bobbitt’s modal approach has best addressed this problem. According to this approach, courts and lawyers use six modalities or methods to interpret the Constitution. Part I concludes by pointing out that Bobbitt’s framework, though helpful, fails in two respects: it fails to explain where these modalities come from and it fails to explain how courts resolve modal conflicts (i.e., cases involving conflicts between two methods of interpreting the Constitution). Here, we come to a central purpose of my article, to fill in these two holes in Bobbitt’s framework. To the best of my knowledge, there is only one other article that takes on this task, an article by Ian Bartrum recently published in the William and Mary Bill of Rights Journal. Part II summarizes how Bartrum’s article seeks to use metaphor theory to resolve these two problems in Bobbitt’s framework. Part II concludes that although Bartrum’s use of metaphor theory represents a significant advancement in the debate over this issue, Bartrum’s account is still incomplete because it does not capture the unpredictability and randomness in the emergence of new modalities. Part III proposes that complexity theory, with its focus on the unpredictability and non-linearity of complex systems, provides a better way of understanding the creation of new modalities. After providing some background on the leading complexity theories, this section argues that modal conflicts are instances of legal chaos, analogous to far-from-equilibrium systems in thermodynamics, in which complex forces resonate to produce outcomes that are ex ante unpredictable. The final section, Part IV, explores precisely how complexity theory can apply to cases involving modal conflicts. In describing different types of modal conflicts, Part IV argues that some conflicts create so much legal chaos that they generate new modalities altogether. Part IV offers an example of such an emerging modality, a modality that I have named “intradoctrinalism.” When a court applies this modality, it interprets a particular doctrine in a way that makes all of the court’s doctrines logically cohere. I argue that this modality might explain a very important case in church-state law, Locke v. Davey, 540 U.S. 712 (2004). The paper concludes with some reflection on how complexity theory can apply to other legal problems, such as how courts can reconcile conflicts between competing legal regimes. The paper thus has both a narrow purpose, to use complexity theory to fill in the gaps in Bobbitt’s modal approach, as well as a broader purpose, to advance complexity theory as a means of examining legal problems in general. With this broader purpose, the paper stands alongside recent efforts to place complexity theory at the forefront of the debate over how to explain social phenomena.
Source: works.bepress.com
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