The idea of a useable past

Article Abstract:

The constitutional legal scholar approaches history in a different manner than the historian, but the fact that legal scholars may focus on useable history does not imply that they are merely advocates with a specific agenda sorting through history in search of ways to justify their positions. It is true that some constitutional theorists do take liberties and use generalizations about the constitutional period to assert the Framers' support on specific, contemporary issues. Legal scholars should use history properly, but their explorations need not mirror those of historians.

Interpretation and construction, Criticism and interpretation, Constitutional interpretation, Constitutional history, Flaherty, Martin S.

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Neutrality in constitutional law (with special reference to pornography, abortion, and surrogacy)

Article Abstract:

The principle of neutrality or impartiality in constitutional law often takes existing practices as a baseline, ignoring the history of the practices in question and the way they have already been constituted by legal rules. In debates on pornography, abortion and surrogacy, the neutrality principle tends to favor existing sexual and reproductive practices which discriminate against women. Once existing practices are questioned, arguments based on equal protection become more plausible.

Beliefs, opinions and attitudes, Pornography, Sex discrimination, Abortion, Fairness, Surrogate motherhood

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Social norms and social roles

Article Abstract:

Law can operate effectively as a collective action mechanism to change social norms and roles that are unproductive or weakly supported by society. Social norms and practices often confound economic assumptions of rational behavior and undermine the value of analysis based on personal preferences. The role of the law can and should be more active than to simply defend individual rights to these preferences. The law can alter norms that cause harm or result in a loss of autonomy.

Social norms, Rational expectations (Economics), Sociological jurisprudence

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