Strict Constructionist Research Articles

The Constructionist as Claims-Maker? A Pragmatist Intervention into Social Problems Theory.

In 1985, Steve Woolgar and Dorothy Pawluch wrote an influential essay about social constructionism, warning against the pitfalls of what they referred to as "ontological gerrymandering," which is to treat certain actors’ claims as socially constructed, while at the same time making realist claims about social conditions. Instead of this unbalanced and asymmetric approach, the best way forward for constructionists is to treat all claims made by any and all acting parties as putative, not necessarily true or false, and to avoid making any independent claims about the actual social conditions that actors are striving to define. Since this time, social problems research, science and technology studies, and environmental sociology have encountered both epistemic and political difficulties with this strict constructionist approach to being fully agnostic about social conditions and the reality of actors’ claims. Drawing on the social pragmatism of George Herbert Mead, I consider some of the problems encountered in the strict constructionist approach, and argue that ultimately, the sociologist herself cannot escape the general problem of having to make objective claims about the empirical social world. Instead of being agnostic about all claims made, sociologists are best to fully accept the responsibility and advantages of being full blown claimsmakers themselves.

Two Suns of the Southwest: Lyndon Johnson, Barry Goldwater, and the 1964 Battle Between Liberalism and Conservatism by Nancy Beck Young

Reviewed by: Two Suns of the Southwest: Lyndon Johnson, Barry Goldwater, and the 1964 Battle Between Liberalism and Conservatism by Nancy Beck Young Kevin Jon Fernlund Two Suns of the Southwest: Lyndon Johnson, Barry Goldwater, and the 1964 Battle Between Liberalism and Conservatism. By Nancy Beck Young. (Lawrence: University Press of Kansas, 2019. Pp. 289. Photographs, notes, bibliographic essay, index.) Nancy Beck Young began the research for this book in 2013. Since then, Donald Trump was elected president in 2016, and Young observes in her [End Page 98] preface that there were “intriguing” similarities between the elections of 1964 and 2016. In both, the Democratic candidates—Lyndon Johnson and Hillary Rodham Clinton—represented safe, status quo choices while Barry Goldwater and Donald Trump were both portrayed by Democrats and Republican centrists (Rockefeller Republicans in 1964 and Never Trump Republicans in 2016) as extremists. In the end, Goldwater was trounced, except in his home state of Arizona and in the five southern states of Louisiana, Mississippi, Alabama, Georgia, and South Carolina. He lost both the Electoral College and the popular vote. Trump also lost the popular vote but prevailed in the Electoral College. For all of the inviting similarities, this book is not about two different elections, but one election and two different campaigns, those of Texas’s Lyndon Johnson and Arizona’s Barry Goldwater. Young argues that the election of 1964 “was more than anything else a competition about two different views of the Sunbelt, Goldwater’s backward-looking conservatism and Johnson’s forward-looking liberalism” (7), and that it turned on the issues of race and the role of the federal government. Young calls these men two suns of the Southwest. Her coverage of the 1964 election is comprehensive and well-researched. She has a sharp eye for detail, such as that available in direct mailing, advertising, speeches, fundraising, and campaign literature, and she also has a good grasp of Johnson’s politics. In addition, she understands how central the civil rights movement had become to liberalism and the Democratic Party, once the bastion of white supremacy and segregation. Her treatment of Goldwater, however, is less sure. While Johnson and Goldwater both may have come from the Southwest, there is a big difference between the history of Johnson’s Texas, which was part of the South, and Goldwater’s Arizona, which was in the West, where the Civil War and Jim Crow cast far lighter shadows. What did loom large for Goldwater was the Cold War, not civil rights (he supported integrated schools but, as a strict constructionist, believed education was a local, not a federal, matter). For “Mr. Conservative,” the spread of Communism abroad and the expansion of the liberal state at home were two inextricably related problems that posed a grave threat to American liberty. In The Conscience of a Conservative (Victor Publishing, 1960), with the clarity and force of a Thomas Paine pamphlet, Goldwater laid out his political vision, which galvanized a new generation of Republicans, and in 1964 won over the Deep South’s voters, who, in retrospect, proved to be way ahead of their time. Young downplays the strong appeal of Goldwater’s political message in the South and offers instead a traditional explanation for his electoral success, suggesting that he used dog whistles and coded speech to lure racist and resentful white voters from the Democratic Party—a charge that he vehemently denied. If Goldwater had a “southern strategy,” it was to [End Page 99] attract voters by taking unequivocal and principled positions on the “Soviet menace,” the size and reach of government, states’ and civil rights, taxes and spending, welfare, farming, labor, and education. And it worked, first in Arizona and the South, and then almost everywhere else, if not right away. It took twenty years, or five more presidential elections, for the sun of the old liberalism to set and for the sun of the new conservatism to rise. In 1984, the latter finally reached its zenith: after running for a second presidential term on what was essentially a Goldwater platform, Ronald Reagan carried forty-nine states out of fifty to win 525 electoral votes out of 538. The United States...

Jefferson: Architect of American Liberty by John B. Boles

Reviewed by: Jefferson: Architect of American Liberty by John B. Boles Randolph B. Campbell Jefferson: Architect of American Liberty. By John B. Boles. (New York: Basic Books, 2017. Pp. 640. Illustrations, notes, bibliography, index.) On April 29, 1962, while hosting a White House dinner honoring Nobel Prize winners from the western hemisphere, President John F. Kennedy memorably remarked, “I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.” John B. Boles’s biography brilliantly attests to the accuracy of Kennedy’s comment. It is no exaggeration to say that during his eighty-three years (1743–1826), Thomas Jefferson sought to know everything about everything, and he came as close as seems humanly possible to that goal. Yet, while he was primarily an intellectual who loved ideas and books, Jefferson also contributed mightily to the “real-world” business of creating the United States. Boles deftly explains how Jefferson shaped the new nation in ways so numerous that only two of the most vital can be mentioned as examples in a brief review. First, the Declaration of Independence, by stating that the protection of individual life, liberty, and the pursuit of happiness is the proper purpose of government, gave the United States undying liberal ideals. Jefferson would have been the first to admit that his nation, and he himself, did not live perfectly up to the ideal of equal human rights. But over the years, his eloquent promise has led the United States to advance a great deal toward making that idealistic goal a reality. The Louisiana Purchase as described by Boles provides a second example. New England Federalists strongly opposed the 1803 agreement with France, arguing that the Constitution did not authorize adding new territory to the United States, and Jefferson, a proclaimed strict constructionist, worried about the constitutionality of the action. The purchase, however, doubled the [End Page 120] size of the nation and assured control of the Mississippi River, so the president argued that the power to make treaties implied the right to use them to acquire new territory. Only a fool would have passed up such an opportunity to secure the future security of the United States because of what amounted to a constitutional quibble; fortunately, Jefferson was no fool. The Louisiana Purchase gave the United States a boundary with Spanish territory in the Southwest and led to Jefferson’s most important contacts with Texas. Boles briefly discusses the Dunbar-Hunter and Freeman expeditions on the Red and Arkansas Rivers in 1805–1806 and Zebulon Pike’s explorations in 1806–1807, but he notes that they received far less attention than the Lewis and Clark Corps of Discovery’s adventures in the Missouri River Valley and the Northwest. Boles also describes how Jefferson, always the expansionist, considered the possibility that the western boundary of the Louisiana Purchase extended to the Rio Grande but due to complications, both domestic and foreign, was unable to acquire from Spain even the small area centering on Baton Rouge called West Florida. As should be expected of a Jefferson biographer writing in the early twenty-first century, Boles emphasizes issues related to slavery. Jefferson, he writes, “has seen his reputation wane due to his views on race, the revelation of his relationship with Sally Hemings, and his failure to free his own slaves” (2). Boles points out that Jefferson considered slavery an evil and often suggested stopping its spread, but that he was unwilling to rid himself of the institution as did an Albemarle County, Virginia, neighbor, Edward Coles, who freed his slaves in 1819. Of course, Coles had to move to Illinois to emancipate his slaves, and the action changed everything in his life. There is no record that Jefferson ever considered such a step; moreover, he never accepted racial equality and always feared that blacks and whites could not live together in peace. He saw no urgency in ending slavery, preferring to believe, Boles writes, “that in God’s good time, emancipation would somehow be effected. In no other aspect of his life does Jefferson seem more distant...

No Foreign Despots on Southern Soil: The Know-Nothing Party in Alabama, 1850-1857

No Foreign Despots on Southern Soil:The Know-Nothing Party in Alabama, 1850-1857 Robert Farrell (bio) On july 28, 1851, samuel f. rice announced his candidacy for Alabama's Seventh Congressional District.1 Instead of representing one of the established political parties, however, Rice ran as a "southern rights" candidate, demanding that Alabama immediately secede from the Union because, he believed, an abolitionist spirit dominated northern voters.2 The federal government no longer benefited the South, Rice argued, and southerners could not hope to protect their property, especially their slaves, from northern abolitionists. Secession, he insisted, should occur as soon as possible.3 Though Rice lost his bid for the U.S. House of Representatives in 1851, he found a new political home four years later in in a budding nativist political party. Samuel F. Rice provides a case study for the American or "Know-Nothing" Party in Alabama.4 Like many Know-Nothings, he desired an alternative to existing political parties because he was convinced that the Whigs and Democrats encouraged abolitionism to grow in [End Page 99] the United States by extending the right to vote to immigrants and foreign-born Catholics.5 Rice sarcastically argued: If our opponents are correct in their high estimate of foreigners, why do they not at once reduce the period for naturalization from five years to one year, or one month, and import without delay enough of them to vote down the Abolition party, and to deliver the South and the republic from all troubles and dangers? If foreigners are indeed the friends of slavery and of Southern Rights, they ought to be brought over the ocean speedily and in large quantities, for they are needed.6 By 1855, Rice and other Alabama Know-Nothings maintained that the American Party's focus on the dangers of foreign influence provided the most effective way to curb abolitionist power in America. By restricting foreign influences, the South could successfully destroy abolitionist fanaticism and remain within the Union. In taking this position, Rice demonstrated the importance of nativism to the success of the American Party in Alabama.7 Reflecting existing nativist cultural values, such as anti-Catholic sentiments, Alabama Know-Nothings embodied broader conservative trends already existing within the South.8 Political nativism in Alabama, however, demonstrated different priorities than northern Know-Nothing policies. Southerners emphasized anti-foreign ideology more than anti-Catholic prejudice when crafting public policies. While anti-Catholic bias certainly existed in the South as an acceptable cultural value, it proved dangerous to Know-Nothing political aspirations because of southerners' insistence on maintaining [End Page 100] a strict constructionist application of the Constitution.9 Moreover, states' rights ideology profoundly shaped Know-Nothing attitudes towards immigration policies in Alabama more so than the ideology shaped the party's northern counterpart. Know-Nothing policies proved attractive to Democrats as well as former Whigs. While most southern Know-Nothings originally belonged to the Whig Party, a realistic possibility existed for a new political alliance between Know-Nothings and secessionist "Fire-Eaters" based on nativist ideology.10 The American Party and Fire-Eaters [End Page 101] shared philosophical outlooks regarding the role of foreign-born Catholics and immigrants in American politics. Furthermore, during the mid-1850s, Fire-Eaters and moderate Democrats were divided over the timing and necessity of secession.11 Internal divisions within the Democratic Party and philosophical similarities between Know-Nothings and Fire-Eaters threatened Democratic hegemony in the South. In response, Alabama Democrats attempted to portray their party as more faithful to conservative political and cultural values. To solidify their claim as the most conservative party, southern Democrats in Alabama radicalized their ideology concerning states' rights and slavery. While southern Democrats had been willing to compromise on slavery before 1850, they became increasingly unwilling to do so, hoping to ensure Fire-Eater support in state elections. Thus, the Democratic Party in Alabama became increasingly unwilling to compromise on slavery due to their political battles with southern nativists, which contributed to secession and the outbreak of the Civil War. These intra-state political battles and cultural tensions demonstrate the importance of the Know-Nothing Party in Alabama and national politics. The American...

“I Come in Here So I Don’t Have to Hate Her”

Singing a barroom weeper is like writing a haiku about cherry blossoms or a Western about a laconic hero who cleans up a violent town. You’re under significant pressure to nail the obligatory elements of the form but you also have an opportunity to make fresh meanings by rearranging its familiar

Guilt by Innuendo: The GAO’s Political Attack on Agency Training Programs, 1940

In 1940, the Government Accounting Office (GAO) released to Congress a slashing attack on in-house training programs in executive branch departments and agencies. The GAO had always used a strict constructionist approach to evaluate the legality of agency spending on training: Was it explicitly authorized by Congress? However, this report was much more of a broad-ranging political and ideological attack on training programs, including accusations of Communist influence and–contradictorily–influence by the Rockefellers. The report can be seen as one of the major attempts by the Congressional conservative coalition to stem the tide of modern personnel administration in the federal executive branch.

The Bumblebee Flies Anyway: the Success of Contextual Constructionism

Although Spector and Kitsuse’s Constructing Social Problems (CSP) is often credited with launching constructionist theory, this obscures the contributions of other sociologists pursuing parallel lines of research. CSP’s advocacy of a strict constructionist position has largely been ignored by constructionist researchers. Although some conflist-oriented socioogists argue that it is time to move beyond constructionism, it remains the best-developed theory of social problems. At the same time, it is necessary to develop the theory in new directions, particularly by synthesizing case studies.

English

The paper critically examined the dominant legal ideology of the Nigerian judges and their attitudes towards statutory interpretation. This was done in the light of the traditional and modern methods, and techniques of judicial reasoning and decision making. It condemned the strict constructionist legal approach which appears to be the pervading orientation of the judges and called for a truly broad and liberal approach that will advance social justice and promote national development. The methodology used was that of analyzing and evaluating rules of statutory interpretation, and the methods and techniques of judicial reasoning and decision making. Key words: Administration of justice, legal ideology.

Interpreting Tax Statutes: Should Judges Fight Tax Avoidance?

Under our criminal law, if I shoot someone at midnight on 31 December 2017, with the malicious intention of killing him without just cause or excuse, and he dies a second after midnight on 2 January 2019 of the gunshot wounds I inflicted on him, I’m not guilty of his homicide. See section 314 of the Criminal Code. Tax avoidance is legal only in like sense in which my gunshot victim’s ill-advised delay in dying excuses me from a murder charge. What I’ve done is not noble. Neither is tax avoidance. “The avoidance of tax may be lawful but it is not … a virtue.” The common law has over several centuries developed guides to statutory interpretation. These guides or rules are usually referred to as canons of statutory construction or canons of statutory interpretation. Given their complexity and detail, tax statutes may indeed be a special breed of legislation as asserted by tax lawyers. Even so, tax statutes ought to be amenable to all canons of statutory interpretation. But the received professional wisdom, zealously buoyed by the tax-avoidance industry, is that most of the canons are not suitable for construing this putatively elite category of legislation. Indeed, going by authority and precedent, the Strict Constructionist Approach and the Literal Rule appear to be the only permissible guides to construing tax statutes. But must we be obsessed with precedent?

Under the Law

The late Justice Antonin Scalia had a profound effect on the U.S. Supreme Court, consistently adhering to and promoting, sometimes scornfully, a strict constructionist application of the U.S. Constitution. On major education cases, he consistently voted against using race in decision making, against claims related to the separation of church and state, and in favor of greater restrictions on student rights. In this Under the Law column, Julie Underwood takes a closer look at some of these cases and his opinions.

Autonomy & the Political Process: Giving Meaning to the Chief Justice's Charge to the American Voting Public

To achieve its stated ends, the American rule of law “consists of a carefully calibrated set of political relations between different popular constituencies and the governing bodies responsible to them.” It places the citizen in the position of both author and subject, and uses its Court system to safeguard those rights deemed unalienable. The extent of the powers granted through these political relations is a question that “is perpetually rising and will probably continue to rise” as long as this system is in place.” The accuracy and strength of this system, however, depends on the degree to which the individuals participating within its allocation of powers are meaningfully effectuating their interests. Few laws implicate the debate over how these powers should be allocated as much as those regulating healthcare. When the power to protect the public health is an “inherent and undeniable aspect of sovereignty,” the dualistic nature of the American system forces each sovereign to defend the undeniable. With growing national legislation in the field of healthcare, states and individuals have sought help from courts to uphold their authority to protect the health of its citizens. The Supreme Court has made clear that the modern American healthcare system requires both federal and state regulatory bodies to coexist. In cases affecting the field of healthcare, the Supreme Court consistently recognizes its duty to maintain this federal-state balance and adhere to the fundamental principles of federalism inherent in our constitutional framework. The Court’s decisions, however, do not rest on any single enigmatic principle, but instead on a strict constructionist reading of the Constitution. Under this type of judicial analysis from the Court, arguments over policy are considered more appropriately debated through the political branches. Building on Richard Fallon’s dualistic conception of autonomy, this article illustrates the advantage of adding an autonomy-based analysis to understand the values allocated in a shared power system.

James J. Kilpatrick: Salesman for Segregation by William P. Hustwit (review)

Reviewed by: James J. Kilpatrick: Salesman for Segregation by William P. Hustwit Kevin Boland Johnson (bio) James J. Kilpatrick: Salesman for Segregation. By William P. Hustwit. (Chapel Hill: University of North Carolina Press, 2013. Pp. 310. $34.95 cloth; $34.95 ebook) Historians of the South and the black freedom struggle have long understood the connections between segregationists and contemporary conservatives. William P. Hustwit’s biography of segregationist-turned-New Right thought (and the life of journalist James J. Kilpatrick) makes those linkages clearer. Hustwit offers a detailed analysis of how Kilpatrick negotiated, renegotiated, reinvented, and repackaged massive resistance thought into a mainstream container that resonated with society’s conservative turn in post-civil-rights America. His central argument is that Kilpatrick’s segregation apologia launched his career nationally and his promotion of race-neutral New Right principles became a “conduit between his region’s conservatives and their ideological counterparts beyond the South” (p. 2). Kilpatrick expressed conservatism in a new language that enjoyed widespread appeal. Kilpatrick’s contributions and connections to the New Right are extensive, including the current miasma of what counts as twenty-four hour “news” channels. Using archival collections belonging to Kilpatrick and William F. Buckley, in addition to voluminous newspaper articles and editorials, the book is part media history and an exposition of tensions in segregationist thought. Hustwit exposes the segregationists’ disagreements regarding tactics and strategy. Massive resisters disagreed over the role race should play in their rhetoric. Kilpatrick believed opposition to Brown v. Board of Education (1954) and integration could best be sold outside the South if stated in terms of states’ rights rather than relying on racial [End Page 317] stereotypes. Ultimately, they sided with Kilpatrick’s denunciation of the Warren Court, which cloaked racism with language about the supremacy of law. In charting the twists and turns in resisters’ ideas during the height of the black freedom struggle, Hustwit demonstrates how it took several important figures to transform defenses of segregation into debates about freedom and the Constitution—especially strict constructionist interpretations. Here readers encounter mainstays in the development of the New Right, including Buckley, Barry Goldwater, and Robert Bork, each of whom took a page from Kilpatrick’s playbook. One chapter titled “Newspeak” reveals Kilpatrick’s motivations for reinventing himself as a steadfast proponent of property rights, individualism, states’ rights, and limited government—tenets that are routinely blared out on the typical Fox News segment. Kilpatrick quit his Richmond job to become a Washington, D.C., political insider, and at that point in his career, as a syndicated columnist, he popularized the current notion of “racism in reverse” in opposition to affirmative action and busing programs. After another metamorphosis as an agrarian country squire on a farm near the Rappahannock River that served as inspiration for “Scrabble” articles about the post-civil-rights southern identity, Kilpatrick became a fixture on Martin Agronsky’s political talk show that propelled his career in conservative punditry and earned him a spot on 60 Minutes. Hustwit explains that the journalist adapted because it paid the bills. “Kilpatrick survived” his segregationist past, Hustwit informs, unlike others who experienced career death in post-1970s society complete with a new racial ethos (p. 3). Yet other historians may point to segregationists with long shelf-lives such as Strom Thurmond (RS.C.), John C. Stennis (D-Miss.), Robert Byrd (D-W.Va.), and Rev. Jerry Falwell. Senator Trent Lott (R-Miss.) enjoyed a long political career before racial code words no longer concealed his real ideas. Hustwit examined Kilpatrick because of his “intermediary” status between “the mandarins who built the modern Republican Party” and the Suburban Warriors who Lisa McGirr analyzed (p. 3). His [End Page 318] argument is quite convincing, but some readers may wish he devoted more attention to anticommunism and conservative ideology and southerners’ reaction to 1960s era school-prayer decisions by the Supreme Court. Kevin Boland Johnson Kevin Boland Johnson is a doctoral candidate in American history at Mississippi State University and a 2013 NAEd/Spencer Foundation Dissertation Fellow. His dissertation, “Guardians of Historical Knowledge: Textbook Politics, Conservative Activism, and School Reform in Mississippi, 1928-1988,” examines conservative ideology and efforts by reformers to shape...

James Edmund Reeves

James Edmund Reeves (1829–1896) presented the article from which these excerpts were taken at the annual meeting of the American Public Health Association (APHA) in Detroit, Michigan, November 14, 1883. At the time he was the secretary of the newly formed State Board of Health of West Virginia and the second vice president of APHA. He would assume the presidency of APHA in 1885. He is the only West Virginian to hold the APHA presidency. Reeves was a self-taught son of the American frontier and a man of considerable energy and intellect. Unlike many of his better- known colleagues, he never trained in Europe. He apprenticed with two physicians in Virginia and completed his medical studies at the University of Pennsylvania in 1860. He maintained a busy medical practice until 1888, but he also published a medical journal, four books, and 15 medical articles. Reeves’s interest in public health was lifelong, and the excerpts from his speech show the breadth and prescience of his knowledge. He was active at the local level, helping his sister teach hygiene to mothers during the Civil War; at the community level, serving as the first health officer of the city of Wheeling, West Virginia; at the state level, organizing the Medical Society of West Virginia and serving as its president in 1882 as well as secretary of the State Board of Health (1881–1885); and at the national level, serving as an officer of APHA and as a trustee of the American Medical Association. Reeves was the son of a Methodist preacher and, while considering himself a scientist, often referred to biblical ethics. He felt a man’s worth should be judged by his works, and he considered himself a “strict constructionist” of the American Medical Association’s ethical proscription against self-promotion. For example, he refused to send his biography to professional directories and typically referred to his accomplishments in the third person. Reeves did not tolerate quackery because he felt this was a form of theft (or sometimes murder) against society. This view is reflected in his speech and is part of his legacy. Reeves was a coauthor of the 1881 law creating the West Virginia State Board of Health and was charged as secretary for enforcing the law. In 1882, Frank Dent, who had practiced medicine in Newburg, West Virginia, for six years, was required, under the new law, to present a diploma from a reputable school or pass a licensing examination. Dent presented a certificate from a fraudulent “diploma mill.” Reeves’s board did not find that his certificate provided evidence of graduation from a “reputable” school and had him arrested and fined for practicing without a license. Dent and his uncle, Marmaduke Dent, later a West Virginia supreme court justice, challenged this arrest, citing the Fourteenth Amendment’s “due process” clause. Dent’s case was eventually appealed to the US Supreme Court, which ruled in 1889 in favor of the state. Dent v. West Virginia (129 U.S. 114 [1889]) is the landmark case that established the right of states to regulate the health professions.

Fixing the Froward Court

A lesson in constitutional interpretation can be learned from baseball. Suppose that umpires were divided between strict constructionists and liberal constructionists of the Official Baseball Rules of major-league baseball. Under that circumstance, there would be Original Rules umpires (e.g., Scalia; Thomas), and there would be Living Rules umpires (e.g., Kagan; Sotomayor).An Original Rules umpire would consider himself bound by the Official Baseball Rules. A Living Rules umpire would allow himself to interpret the Official Baseball Rules dynamically.The United States Supreme Court is, and will continue to be, a political institution which decides policy questions. Therefore, it is necessary to curb the decision-making authority of that court. Two proposals are made.

Remember Lot's Wife: Interpretation of Tax Statutes

The common law has over several centuries developed rules of or guides to statutory interpretation. These rules are usually referred to as canons of statutory construction or canons of statutory interpretation. Although tax statutes are (allegedly?) a special breed of legislation, they are nevertheless statutes, and it is submitted here that the canons of statutory interpretation may be employed freely in the interpretation of tax statutes, almost, though not quite, as much as they are used in statutory interpretation generally. In the evolution of the canons of statutory construction, tax statutes have not been exempted from their beam. On the other hand, the received professional wisdom on tax statutory interpretation is that most of the canons are not suitable for construing this elite category of legislation. Indeed, going by some of the most eminent authorities, the Strict Constructionist Approach and the Literal Rule appear to be the only permissible guides to construing tax statutes. Lawyers love certainty of doctrine and precedent along with predictability of their application. They adopt a worshipful backward gaze at rigid precedent and stiffen their necks in the process. They are like Lot’s wife, who, having looked back, was turned into a pillar of salt , rigid and unyielding, unable to glance forward. Tax lawyers love to invoke Cape Brandy and Duke of Westminster, and then fold their arms, gleefully expecting a judicial “Amen!” to whatever fossilised jurisprudence they have uttered. Well, “nothing is certain except death and taxes” including the death of doctrines about the interpretation of taxes. International, or more precisely foreign, tax jurisprudence has hitherto guided the understanding of tax statutory interpretation among the legal community in Nigeria. Our regular courts, including even the Supreme Court, have contributed very little to tax law jurisprudence, and even less to tax statute interpretation. They have tended to feebly copy and paste Cape Brandy and Duke of Westminster. Cape Brandy and Duke of Westminster are no longer gospel truth. The simple, unvarnished truth is that our courts are scarcely learned in tax law. They take their guidance wherever they can find it- until now, from outside. With the advent of the new tax regime and the inauguration of the tax appeal tribunals, our courts can now look inward, even if downward, for inspiration on the growth of our tax jurisprudence especially as regards tax statutory interpretation. In this paper I essentially submit the proposition for your consideration that while taxes may be certain, their interpretive philosophy is not as settled as tax lawyers have been led to assume or would like to think. The paper therefore muddles the waters that you thought had long been calmed, in order to throw up the pebbles and coral reefs of discord entangled beneath, for possible disentanglement. The tax appeal tribunals, being specialist albeit inferior administrative tribunals, can lead the development of tax law jurisprudence. Appeals to the Federal High Court and thence higher up should provide the legal system with ample opportunities as sharpening the contours of our tax law, particularly in the matter of interpretation.

Majority Rule versus Consensus: The Political Thought of John C. Calhoun , and: Party over Section: The Rough and Ready Presidential Election of 1848 (review)

Majority Rule versus Consensus: The Political Thought of John C. Calhoun. By James H. Read. (Lawrence: University Press of Kansas, 2009. Pp. 288. Cloth, $34.95.)Party over Section: The Rough and Ready Presidential Election of 1848. By Joel H. Silbey. (Lawrence: University Press of Kansas, 2009. Pp. 224. Cloth, $34.95.)Reviewed by Joshua A. LynnIn 1850, a dying John C. Calhoun looked on as a colleague read the South Carolinian's final address the United States Senate. In his speech, Calhoun announced the weakening of the nation's great parties. This development, he claimed, endangered the Union, as the parties had functioned to hold its parts together.1 Although premature in his observation, Calhoun's linkage of the demise of the antebellum bisectional parties with unchecked sectionalism and disunion endures in accounts of the coming of the Civil War. At the same time, throughout his lengthy career Calhoun had regularly lambasted the parties for dulling sectional unity which, he argued, would actually strengthen the Union. The interaction of political parties with southern sectionalism thus proves more problematic than a simple inverse relationship in which partisanship diminishes as sectionalism increases. Two recent works on antebellum politics, taken together, highlight this dynamic and lead us ask whether dedication national political parties always benefited the Union, and whether southern sectionalists always sought weaken it.Calhoun prescribed the institutionalized voice of a united South as a preservative of the Union. In Majority Rule versus Consensus: The Political Thought of John C. Calhoun, political scientist James H. Read analyzes the doctrines of this expansive thinker with both theoretical and historical subtlety. Read carefully explains Calhoun's theory of the whereby interests in society would possess a veto and in which consensus would be enshrined as the model for government. Read finds that while theoretically unworkable - if not in fact dangerous - the concerns that informed the concurrent majority ought be taken seriously. Calhoun's qualms with majority rule, manifest in a domineering North and a marginalized South, remain serious indictments of democratic government, but his solution represents a worse alternative. For Calhoun, certain minorities, especially the South, should be able obstruct legislation, but in practice, the definition of who constituted a minority interest was itself exclusionary, and the goal of compromise could not guarantee actual consensus as opposed inefficient deadlock.Read takes issue with the view of Calhoun as a dogmatic strict constructionist. Calhoun instead envisioned the proper functioning of government, utilizing the concurrent majority, in expansive terms, because legislation derived from consensus could only further the common good. Calhoun thereby reworked inherited political thought, discarding traditional categories of by one, the few, or the many, for a system of rule by all (1). Recovering his positive conception of government demolishes the image of Calhoun as the airy theorist simply trying protect slavery behind ever more baroque formulations of state sovereignty.While the concurrent majority cannot be reduced a simple defense of slavery, neither can Calhoun's thought be severed from his proslavery views. The chief strength of Read's work and its value for historians stems from his methodological approach of balancing theoretical inquiry with historical context. Read recognizes that slavery and race occupied significant positions in the South Carolinian's doctrines. Indeed, Calhoun's defense of slavery leads holes in his theory, as when he places slavery beyond the limits of debate and compromise. Read thus probes the flaws of the concurrent majority on two fronts - its internal contradictions and its external reliance on a context in which slavery not only prompted its formulation but also remained intrinsic its functioning. …

Suburban Queer: Reading Grease

This article examines how nontraditional representations of gender can complicate received social norms, and it examines, in particular, how pre-adolescent suburban youth reconfigure social codes within popular film in order to identify positive queer aesthetics. While several studies have documented the function of classic and mainstream film in the tradition of queer reading, there has been comparatively less analysis devoted to the ways that filmic representations themselves might contribute to theoretical debates regarding sexual identity. As a case in point, this essay analyzes the 1978 musical Grease in order to suggest ways that critics might navigate between strict social constructionist and essentialist theories of sexual identity in order to identify avenues for queer identification within non-queer contexts.

Balancing Act: Young America’s Struggle to Revive the Old Democracy

Balancing Act: Young America’s Struggle to Revive the Old Democracy Elizabeth R. Varon (bio) Yonatan Eyal. The Young America Movement and the Transformation of the Democratic Party, 1828–1861. New York: Cambridge University Press, 2007. xii + 252 pp. Notes and index. $75.00. This impressive first book challenges us to look anew at the Democratic party of the late antebellum period and thereby to appreciate the profound influence of the party’s self-styled progressive vanguard, the “Young Americans.” In the 1840s and 1850s, “Young America” had its heyday as a faction in the political party of Old Hickory. Led by men such as editor John O’Sullivan, whose Democratic Review was the organ of the new movement; politicians Stephen Douglas, James K. Polk and Franklin Pierce; and New York financier August Belmont, this faction, Eyal explains, broke with the agrarian and strict constructionist orthodoxies of the past and embraced commerce, technology, regulation, reform, and internationalism. They defied, so Eyal seeks to prove, the “recurrent stereotype of the Democrats and racists and imperialists” and appeasers of the slaveocracy (p. 12). Eyal’s book, he notes early on, is a political, not a cultural, history. It is meant to complement the extensive scholarship on the literary branch of Young America—a New York-based movement of editors and writers who wanted to break free of dependence on European standards of high culture and to prove the excellence and exceptionalism of America’s own literary tradition.1 As important as they were, drawing into their orbit the likes of Hawthorne and Melville, literary Young Americans were eclipsed in prominence by political ones. Young Americans represented, literally, a new generation of political leaders. “Sons of the Jacksonians and grandchildren of the Founders,” they confronted a paradox: Jacksonians had promoted the idea that representatives should be accountable to their local constituents, but now in the 1840s, those constituents were demanding, in the name of localism, that Democratic politicians abandon some of the party’s most hallowed economic principles (p. 32). Around the country, but especially in western boomtowns, Democratic constituents wanted to tap the power of the market revolution in order to generate prosperity and [End Page 42] development—and that meant supporting the very sorts of state-sponsored “internal improvements” that Democrats had traditionally decried. Young Americans (or New Democrats), most prominently Stephen Douglas of Illinois, proved responsive to constituent pressures and skilled at justifying internal improvements in a political language that Democrats could call their own. To meet the mounting demands for the construction of railroads, canals, telegraphs, turnpikes, bridges, harbors, steamships and other vehicles of the market revolution, Young Americans advocated Congressional land grants to the states; this created the comforting fiction that internal improvements were locally rather than federally sponsored. They argued that improved transportation networks would perpetuate the agrarian vision of Jefferson by allowing farmers to sell their products and therefore to prosper. And they linked internal improvements to free trade: they accepted moderate tariffs as a necessary means to generate government revenue, and they defended the Independent Treasury (the Jacksonian alternative to the Second Bank of the United States) not as a “scheme to quash [the] special priviledge” of the Whiggish Northeastern eastern monied elite, but as a pro-growth instrument for promoting development and commerce (p. 79). With the economy booming in the mid-1840s and the first Young American president, James K. Polk, in office, reform-minded Democrats set their sights on exporting American democracy. Allying themselves with the “Young Europe” movements springing up on the continent, some New Democrats called for foreign intervention to support the revolutions of 1848. While such calls had little practical consequence, they do reveal, Eyal notes, the strong strain of idealism—a belief in the transcendent power of democracy—that animated Young Americans. Such idealism drove many influential New Democrats, such as Belmont, who became President Pierce’s minister at the Hague, into the foreign service. And it drove New Democrats to look to the American West and the Caribbean as fields where they might plant democracy. “Bringing Cuba and Mexico into the liberty-loving folds of Union seemed no different from helping Louis Kossuth to shrug off autocracy...

The Obama-Tribe 'Curvature of Constitutional Space' Paper is Crackpot Physics

Harvard Law School professor Laurence Tribe published a paper entitled The Curvature of Constitutional Space, wherein he argued that the strict constructionist interpretations of the U.S. Constitution were obsolete, being based on a Newtonian world-view, and need to be replaced by a more modern relativistic and quantum mechanical world-view. I shall show on the contrary that in using general relativity and quantum mechanics, we have never left the Newtonian world-view. It was shown in 1923 by the greatest geometer of the twentieth century, Elie Cartan, that in Newtonian theory, gravity is curvature just as it is in general relativity. greatest twentieth century theoretical physicist in Poland, Andrzej Trautman, showed in 1966 that the equations of general relativity are mathematically equivalent to Newtonian gravitational field equations interacting with the luminiferous ether. Physics Nobel Prize winner Lev Landau showed in the 1930's that the Schrodinger equation, the basic equation of quantum mechanics, is a special case of the Hamilton-Jacobi equation, proven in 1837 to be the most powerful formulation of Newtonian mechanics. Erwin Schrodinger himself proved that his equation had nothing to do with probabilities or fundamental uncertainties. Since it was demonstrated mathematically decades ago that twentieth century physics is Newtonian mechanics, then by Laurence Tribe's own argument, it follows that all objections to strict constructionism are without merit. Tribe's physics is not post-Newtonian but pre-Newtonian, the physics of Aristotle, in which the arbitrary will of the powerful is the dominant influence in reality. Tribe's politics is, like his physics, profoundly reactionary, replacing unalterable law with the ever changing personal preferences of judges. As I shall demonstrate, the recent Boumedienne vs. Bush decision is a particularly egregious example of such replacement. Furthermore, Tribe's main books on Constitutional law are adversely influenced by his bad physics.

Faithful Political Rhetoric

Faithful Political Rhetoric Kristy Maddux (bio) Failing America’s Faithful: How Today’s Churches Are Mixing God with Politics and Losing their Way. By Kathleen Kennedy Townsend. New York: Warner Books, 2007; pp xv + 206. $24.99. God’s Politics: Why the Right Gets It Wrong and the Left Doesn’t Get It. By Jim Wallis. New York: HarperCollins, 2005; pp xxvi + 384. $24.95. The Myth of a Christian Nation: How the Quest for Political Power Is Destroying the Church. By Gregory A. Boyd. Grand Rapids, MI: Zondervan, 2005; pp 207. $19.99. Tempting Faith: An Inside Story of Political Seduction. By David Kuo. New York: Free Press, 2006; pp xiv + 283. $25.00. Thy Kingdom Come: How the Religious Right Distorts the Faith and Threatens America: An Evangelical’s Lament. By Randall Balmer. New York: Perseus Books, 2006; pp xxviii + 242. $24.95. Why the Christian Right Is Wrong: A Minister’s Manifesto for Taking Back Your Faith, Your Flag, Your Future. By Robin Meyers. San Francisco: Jossey-Bass, 2006; pp xvii + 203. $22.95. With the reelection of George W. Bush in 2004, it seemed that evangelical Christians had arrived as a political force. When exit poll data showed a correlation between voters’ concern over “moral values” and their preference [End Page 133] for George W. Bush and the Republican Party, journalists had a framework for interpreting the election: all credit for Bush’s reelection was due to the “values voters.”1 If Bush owed his political fortunes to the evangelical Christians, this narrative held, we could expect to see their policy demands—including a federal same-sex marriage amendment and strict constructionists appointed to the Supreme Court—realized in his second term. Evangelical Christians’ political reign may have been short-lived, however. Less than three years later, with the passing of Jerry Falwell, the same journalists seized upon a narrative of a movement in transition.2 No longer will evangelical Christians maintain their single-minded focus on the personal morality issues, nor will they be devoted to the Republican Party, journalists predicted. Instead, the movement’s new standard-bearers will be preachers like Rick Warren and Bill Hybels, whose broader vision encourages evangelical Christians to attend to issues such as poverty, HIV/AIDS, and the environment. Ubiquitous as these narratives became, they are overly simplistic. Too often, what has gone unquestioned in these journalistic treatments of the “values voters” and evangelical Christian politics are the assumptions that religious values should influence political and electoral decision making, that faith-based influence in politics is a phenomenon newly created by the Christian Right, and that Christian values necessarily translate into social conservatism. Given the popularity of these narratives and these assumptions, it may be time for scholars in rhetorical studies to revisit the relationship between religion and U.S. politics. Roderick P. Hart brought this question to our attention more than 30 years ago with his publication of The Political Pulpit, in which he built upon Robert Bellah’s concept of civil religion to introduce the notion of a civic piety contract between church and state held stable by rhetorical practice.3 Steven R. Goldzwig then wrote of the significance of public theology, which he defined as “theologically-based discourse intentionally targeted for mass audiences in an attempt to influence the attitudes, beliefs and values of both religious and secular publics on public policy.”4 The reissue of Hart’s book in 2005 featured contemporary commentary on his original work, with Goldzwig and Martin J. Medhurst both suggesting that Hart’s thesis, although provocative, does not prove fully explanatory for the twenty-first-century context. As Medhurst argues, whereas Hart’s thesis may have described the symbolic, depoliticized practice of religion that defined postwar America, it cannot account for an era that has witnessed the emergence of groups like the Moral Majority and the Christian Coalition.5 Outside of rhetorical studies, a productive conversation about the influence of religion in contemporary politics is taking place in both scholarly and popular venues. At stake in this conversation, first, are legal issues: what role(s) do [End Page 134] the First Amendment’s free exercise and establishment clauses allow for...