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STUDIES IN LAW, POLITICS, AND SOCIETY VOLUME 28 STUDIES IN LAW, POLITICS, AND SOCIETY EDITED BY AUSTIN SARAT Department of Law, Jurisprudence & Social Thought and Political Science, Amherst College, USA PATRICIA EWICK Department of Sociology, Clark University, USA 2003 JAI An imprint of Elsevier Science Amsterdam – Boston – London – New York – Oxford – Paris San Diego – San Francisco – Singapore – Sydney – Tokyo STUDIES IN LAW, POLITICS, AND SOCIETY STUDIES IN LAW, POLITICS, AND SOCIETY Series Editors: Austin Sarat and Patricia Ewick Volumes 1–2: Edited by Rita J. Simon Volume 3: Edited by Steven Spitzer Volumes 4–9: Edited by Steven Spitzer and Andrew S. Scull Volumes 10–16: Edited by Susan S. Sibey and Austin Sarat Volumes 17–27: Edited by Austin Sarat and Patricia Ewick ELSEVIER SCIENCE Ltd The Boulevard, Langford Lane Kidlington, Oxford OX5 1GB, UK © 2003 Elsevier Science Ltd. All rights reserved. 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ISBN: 0-7623-1015-4 ISSN: 1059-4337 (Series) ∞ The paper used in this publication meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper). Printed in The Netherlands. CONTENTS LIST OF CONTRIBUTORS vii EDITORIAL BOARD ix PART I. ISSUES IN CONSTITUTIONAL INTERPRETATION REVISITING CONSTITUTIONAL INTERPRETATION: A COMPARATIVE PERSPECTIVE ON THE AMERICAN DEBATES Matthew J. Moore 3 MINORITY REPRESENTATION, THE SUPREME COURT, AND THE POLITICS OF DEMOCRACY Yasmin A. Dawood 33 PART II. “MISSING PERSONS” ACCOUNTING FOR ABSENT BODIES: THE POLITICS AND JURISPRUDENCE OF THE MISSING PERSONS ACT Thomas M. Hawley 75 SURVIVING LAW: DEATH COMMUNITY CULTURE Patrick Hanafin 97 EXTRATERRITORIAL CRIMINAL JURISDICTION: REPLACING “OBJECTIVE TERRITORIALITY” WITH “DEFENSIVE TERRITORIALITY” Ellen S. Podgor 117 v vi PART III. THE CHALLENGES OF (AND TO) RIGHTS “SUBJECTIVITY IS A CITIZEN”: REPRESENTATION, RECOGNITION, AND THE DECONSTRUCTION OF CIVIL RIGHTS Jonathan Goldberg-Hiller 139 LIST OF CONTRIBUTORS Yasmin A. Dawood Political Science, University of Chicago, USA Jonathan Political Science, Goldberg-Hiller University of Hawaii, Manoa, USA Patrick Hanafin Law, Birkbeck College, USA Thomas M. Hawley Political Science, University of Hawaii, Manoa, USA Matthew J. Moore Political Science, Johns Hopkins University, USA Ellen S. Podgor Law, Georgia State University, USA vii EDITORIAL BOARD Kristin Bumiller David Nelken Department of Political Science Faculty of Law Amherst College, USA University of Macerata, Italy Jane Collier Joel Rogers Department of Anthropology School of Law Stanford University, USA University of Wisconsin, Madison, Gerald Frug USA School of Law, Harvard University, USA Carroll Seron Joel Handler Baruch College School of Law City University of New York, University of California, Los Angeles, USA USA Christine Harrington Martin Shapiro Department of Politics Boalt Hall School of Law Institute for Law and Society University of California, Berkeley, New York University, USA USA Robert Kidder Boaventura de Sousa Santos Department of Sociology School of Economics Temple University, USA University of Coimbra, Portugal Gary Marx David Sugarman Department of Sociology Department of Law University of Colorado, USA University of Lancaster, UK Doreen McBarnett Adelaide Villmoare Socio-Legal Centre, Wolfson College Department of Political Science Oxford University, UK Vassar College, USA Sally Engle Merry Robin West Department of Anthropology School of Law Wellesley College, USA Georgetown University, USA Brinkley Messick Patricia Williams Department of Anthropology School of Law Columbia University, USA Columbia University, USA Sheldon Messinger Barbara Yngvesson Center for Law and Society Department of Anthropology University of California, Berkeley, USA Hampshire College, USA ix PART I. ISSUES IN CONSTITUTIONAL INTERPRETATION REVISITING CONSTITUTIONAL INTERPRETATION: A COMPARATIVE PERSPECTIVE ON THE AMERICAN DEBATES Matthew J. Moore ABSTRACT The author argues that the familiar distinction between interpretive and non-interpretive theories of constitutional interpretation obscures another important distinction: that between hermeneutically open and hermeneu- tically closed theories. Closed theories seek resolution to constitutional conflict by employing methods of interpretation that are intuitively per- suasive. Open theories deny that such methods are always available, and seek resolution of conflict through a combination of legal, political, and social means. The author argues that closed theories have failed to live up to their implicit promise of self-justification, and examines the practice of constitutional interpretation in Canada and Australia to support this view. INTRODUCTION Although the question of the proper methodology of constitutional interpretation is a perennial issue in American legal scholarship, in the late 1980s the conversation reached what seems to have been an historic peak of both volume and intensity. Studies in Law, Politics, and Society Studies in Law, Politics, and Society, Volume 28, 3–31 Copyright © 2003by Elsevier Science Ltd. All rights of reproduction in any form reserved ISSN: 1059-4337/PII: S1059433702280011 3 4 MATTHEW J. MOORE Just over ten years later, the debates have cooled considerably, but not because the issues have been satisfactorily resolved.1 Instead, a kind of stalemate has been reached, in which the various positions and criticisms are well known to all, and no new developments have arisen to tip the balance in favor of any particular methodology. In this essay, I propose that there are two ways of understanding the current stalemate. From one perspective, it is a failure, an inability to arrive at a consensus that is crucial to the success of democratic constitutionalism (I refer to theories taking this position as hermeneutically closed). From another perspective, the stalemate is to be expected in a diverse polity, and needn’t necessarily stand in the way of our most basic political and legal commitments (I refer to such theories as hermeneutically open).2 To make sense of these two perspectives, I return to the interpretation debates from both a theoretical angle and a comparative angle. On the theoretical side, I propose a way of grouping the various positions – and thus what is at stake between them – that is different from the most common organizing schema. On the empirical side, I look at constitutional interpretation in Canada and Australia to suggest that one side of the interpretation debates (the closed theories) has not lived up to its implicit claim of being self-justifying. Finally, I return to theoretical analysis to examine more closely the promise and problems of open theories. OPEN AND CLOSED APPROACHES TO INTERPRETATION What is at issue in the interpretation debates is part of a more general concern: Pro- found and persistent disagreements