Nobody can agree on what the Constitution means. Some argue that it prohibits states from banning... more Nobody can agree on what the Constitution means. Some argue that it prohibits states from banning abortions,' while others claim that it says nothing about abortion, 2 or that it prohibits abortion.' It is claimed that the Constitution abolishes the death penalty, 4 and that it specifically authorizes the death penalty;' that it bans segregated schools 6 and is indifferent to segregation; 7 that it requires that we exempt religious believers from laws that burden the practice of their religion," and that it prohibits governments from granting such exemptions; 9 that it eliminates the possibility of a thirty-one year-old president,' 0 and that it welcomes this possibility." Such examples, of course, could be greatly multiplied. " Two beliefs about this perplexing document do not appear controversial. All commentators seem to agree that the Constitution is a text, and that understanding it is primarily a matter of deploying the proper theory of textual interpretation. ' 3 The purpose of this article is to demonstrate that those beliefs are largely mistaken. I am aware that readers of this text will consider such a claim highly counterintuitive, and perhaps excluded interpretation of the written text would be taken seriously." dismiss it out of hand. I can only prospectively ask for your patience. Reading, Barthes has noted, is an intimacy between strangers; and perhaps, like all intimacy, it requires an initial gesture of faith from both author and reader. No one can articulate a syllable which is not filled with tenderness and fear, which is not, in some language, the powerful name of a god. In his story "Pierre Menard, Author of the Quixote" Jorge Luis Borges creates a character whose life goal is to write Don Quixote. Menard's goal is not "to compose another Don Quixote-which would be easy-but the Don Quixote." 5 He first considers a straightforward approach: Know Spanish well, recover the Catholic faith, fight against the Moors or the Turk, forget the history of Europe between the years 1602 and 1918, be Miguel de Cervantes.1 6 Menard rejects this method as too easy. For Cervantes at the beginning of the seventeenth century the writing of Don Quixote "was a reasonable... perhaps even unavoidable" 7 undertaking; for Pierre Menard to write the same book in the twentieth century is a considerably more arduous, and therefore, for Menard, more interesting task. Menard partially succeeds in his absurd enterprise: he finishes two chapters and parts of a third of the famous novel. Borges' narrator notes that despite appearances the two works are not the same. While "Cervantes' text and Menard's are verbally identical [Menard's] is almost infinitely richer."'" The narrator quotes Cervantes: truth, whose mother is history, rival of time, depository of deeds, witness of the past, exemplar and advisor to the present, and the future's counselor. 19 Written in the seventeenth century this is, according to the narrator, "a mere rhetorical praise of history." 2 0 He then quotes Menard: truth, whose mother is history, rival of time, depository of deeds, 14.
BackgroundPostoperative acute kidney injury (AKI) is a common complication of major gastrointesti... more BackgroundPostoperative acute kidney injury (AKI) is a common complication of major gastrointestinal surgery with an impact on short- and long-term survival. No validated system for risk stratification exists for this patient group. This study aimed to validate externally a prognostic model for AKI after major gastrointestinal surgery in two multicentre cohort studies.MethodsThe Outcomes After Kidney injury in Surgery (OAKS) prognostic model was developed to predict risk of AKI in the 7 days after surgery using six routine datapoints (age, sex, ASA grade, preoperative estimated glomerular filtration rate, planned open surgery and preoperative use of either an angiotensin-converting enzyme inhibitor or an angiotensin receptor blocker). Validation was performed within two independent cohorts: a prospective multicentre, international study (‘IMAGINE’) of patients undergoing elective colorectal surgery (2018); and a retrospective regional cohort study (‘Tayside’) in major abdominal surg...
Yale Journal of Law & the Humanities dismiss it out of hand. I can only prospectively ask for you... more Yale Journal of Law & the Humanities dismiss it out of hand. I can only prospectively ask for your patience. Reading, Barthes has noted, is an intimacy between strangers; and perhaps, like all intimacy, it requires an initial gesture of faith from both author and reader. No one can articulate a syllable which is not filled with tenderness and fear, which is not, in some language, the powerful name of a god. In his story "Pierre Menard, Author of the Quixote" Jorge Luis Borges creates a character whose life goal is to write Don Quixote. Menard's goal is not "to compose another Don Quixote-which would be easy-but the Don Quixote." 5 He first considers a straightforward approach: Know Spanish well, recover the Catholic faith, fight against the Moors or the Turk, forget the history of Europe between the years 1602 and 1918, be Miguel de Cervantes.1 6 Menard rejects this method as too easy. For Cervantes at the beginning of the seventeenth century the writing of Don Quixote "was a reasonable... perhaps even unavoidable" 7 undertaking; for Pierre Menard to write the same book in the twentieth century is a considerably more arduous, and therefore, for Menard, more interesting task. Menard partially succeeds in his absurd enterprise: he finishes two chapters and parts of a third of the famous novel. Borges' narrator notes that despite appearances the two works are not the same. While "Cervantes' text and Menard's are verbally identical [Menard's] is almost infinitely richer."'" The narrator quotes Cervantes: truth, whose mother is history, rival of time, depository of deeds, witness of the past, exemplar and advisor to the present, and the future's counselor. 19 Written in the seventeenth century this is, according to the narrator, "a mere rhetorical praise of history." 2 0 He then quotes Menard: truth, whose mother is history, rival of time, depository of deeds, 14.
17. Amar, supra note 10, at 133 (emphasis added) (citations omitted). 18. See Texas v. Johnson, 4... more 17. Amar, supra note 10, at 133 (emphasis added) (citations omitted). 18. See Texas v. Johnson, 491 U.S. 397, 427-28 & n.1 (1989) (Rehnquist, C.J., dissenting). 19. Amar, supra note 10, at 145. 28. See Texas v. Johnson, 491 U.S. 397, 404, 417-18 (1989). 29. The (mis)use of the word "interpretation" to characterize a host of disparate activities is examined in Campos, supra note 27. 30. Johnson, 491 U.S. at 403. 31. Id. at 404-05 (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)).
Government is a true religion. It has its dogmas, its mysteries, its priests. To submit it to the... more Government is a true religion. It has its dogmas, its mysteries, its priests. To submit it to the discussion of each individual is to destroy it. It is given life only by the reason of the nation, that is by a political faith, of which it is a symbol.
On that day Rabbi Eliezer used all the arguments in the world, but they did not accept [them] fro... more On that day Rabbi Eliezer used all the arguments in the world, but they did not accept [them] from him. He said to them: 'If the Halakhah [the religious law] is in accordance with me, let this carob tree prove it.' The carob tree was uprooted from its place one hundred cubits--and some say, four hundred cubits. They said to him: 'One does not bring proof from a carob tree.' He then said: 'If the Halakhah is in accordance with me, let the channel of water prove it.' The channel of water turned backward. They said to him: 'One does not bring proof from a channel of water.' He then said: 'if the Halakhah is in accordance with me, let the walls of the House of Study prove [it].' The walls of the House of Study leaned to fall. Rabbi Yehoshua rebuked them, [and] said to them: 'if the Talmudic Sages argue with one another about the Halakhah, what affair is it of yours?' They did not fall, out of respect of Rabbi Yehoshua; but they did not straighten, out of respect for Rabbi Eliezer, and they still remain leaning. He then said to them: 'if the Halakhah is in accordance with me, let it be proved from Heaven.' A [heavenly] voice went forth and said: 'Why are you disputing with Rabbi Eliezer, for the Haakhah is in accordance with him everywhere." Rabbi Yehoshua rose to his feet and said. 'It is not in heaven.'" What does "it is not in heaven" [mean]? Rabbi Yirmeyah said: "That the Torah was already given on Mount Sinai [and is thus no longer in heaven], and we do not pay attention to a [heavenly] voice, for You already wrote in Torah at Mount Sinai: 'After the majority to incline.'" Rabbi Nathan met Elijah [and] said to him: "What did the Holy One, blessed be He, do at that time?" He said to him: "He smiled and said: 'My sons have defeated Me, My sons have defeated Me.'" The Talmud 1
For any observer-relative feature F, seeming to be F is logically prior to being F, because-appro... more For any observer-relative feature F, seeming to be F is logically prior to being F, because-appropriately understood-seeming to be F is a necessary condition of being F.' Let be be finale of seem. 2 The dream is an old one: reality shall replace appearance, the corruptible body will surrender to the transcendent mind, the chaotic confusion of the many will give way to the geometric clarity of the one, and we shall see not through a glass darkly, but face to face. In American legal thought, these Platonic urges are usually expressed through the respective attempts of the formalist to make law "scientific" or "objective," and hence, it is supposed, objectively knowable, and of the hermeneutician to make it an evolving object that changes yet remains the same, thereby rendering it both "legal" and potentially "progressive" or "just." Both the formalist and the hermeneutic theoretical projects are enabled by the assumption that the meaning of a text is independent of the particular intentions of the text's author and of any particular reader's beliefs about those intentions. For the formalist, the subjective nature of the author's intention makes it deeply suspect; and in any case, on this view authorial intention is simply irrelevant. As Judge Frank Easterbrook has put it, "the process [of legal interpretation] is objective; the search is not for the contents of the authors' heads but for the rules of language they used." 3 In hermeneutic theory, "dynamic" or "evolutive" interpretation is made possible by the assumption that a stabilized object of textual interpreta-
THREE VERSIONS OF NONSENSE Paul Campos* Larry Alexander's interesting and provocative paper ... more THREE VERSIONS OF NONSENSE Paul Campos* Larry Alexander's interesting and provocative paper raises all sorts of important questions, of which I have time here to address only one, or rather two aspects of one: is his claim that the modern American univer-sity is in ...
Uploads
Papers by Paul Campos