Saturday, June 27, 2009

Comparative Constitutional Law & Literature: Robson's Saturday Evening Review

"What is a Constitutional Epic?" Penelope Pether asks in her piece Comparative Constitutional Epics, 21 Law & Literature 16 (2009) and available on ssrn here.  Pether (pictured below) is one of the leading lights of the discipline loosely known as law and literature, but her work is uniquely devoted to constitutional theory and to comparative constitutional doctrine.  In this essay, she considers not only Robert Cover's classic article "Nomos and Narrative," but the rereading by Con Law Prof (and newly named Dean of Yale Law School) Robert Post in which Post discerns:

both Cover’s failure to register that every nomos is jurispathic of others, and his “skeptic[ism] of a jurisgenerative politics” of public reason, he does not perceive that if indeed Cover’sromantic hope is for a heteroglossic republic of nomoi, as some among Cover’s glossators
have held it to be,it is blood kin to his own students’ contemporary civic republicanism. Such is the horizon of the inheritors of the death of law, the faithful of popular Constitutionalism.

Id. at 108. 

Pether She also trenchantly analyzes  - - - as a Constitutional Epic - - - "the massive, three-volume public version of the Report of the Events Relating to Maher Arar, produced by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar,a Canadian national of Syrian birth who was, with the cooperation of the Canadian authorities, arrested and detained by the United States in New
York while lawfully in transit through Kennedy Airport, and “extraordinarily rendered,” to Syria, where he was imprisoned, tortured, and otherwise mistreated, even though, as the Commissioner reported, 'there is nothing to indicate that Mr. Arar committed an offense or that his activities constitute a threat to the activities of Canada.' "  Id. at 114.  She reads this Report against the United States Supreme Court's opinion in Arar v. Ascroft.  And in the Australian context, she reads Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, in conjunction with the Australia High Court's judgment in Kruger v. Commonwealth (The Stolen Generations case).  In both instances, the "positivist" and narrow interpretations of constitutional law, she argues, are undermined by what she terms the "factions" of the reports.

Pether's discussion of these reports made me a bit less cynical about government reports and made me contemplate the ability of these documents to become "constitutional epics."  As we ponder the Obama Administration's response to what might be broadly named the "torture memos controversies," Pether's arguments are worth considering.  If, as she writes, "constitutional epics" express the range of our constitutional commitments, then surely they are grounds for generating profound insights about constitutional law.


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