Law in Contemporary Society

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DanielButrymowicz-FirstPaper 9 - 22 Mar 2008 - Main.EbenMoglen
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  To use Thurman Arnold’s terminology, the Constitution is a central creed in American society. It determines what is and is not politically acceptable. The creed is maintained through what Jerome Frank calls legal magic. Since there is no objective way to determine the Constitution’s stance on most issues, competing factions vie over how best to apply this magic. The internal division over how the magic should be used reaffirms the magic’s validity and allows the broader Constitution creed to function as a unifying force.
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  • I don't see any benefit to bringing Frank in here. What did it get you besides name-dropping?
 

II. The Constitution Creed

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  • The primary problem here, from my point of view, is that you do the easy work at too great length, including some unnecessary twisting of the sources to create a closer correspondence to your view of contemporary reality, without doing any of the hard work at all. Someone who has read Arnold is likely to see the obvious connection to constitutional law as a creed: Arnold hits the reader over the head with the point. To make something new out of the Arnoldian cliche requires actually reading some constitutional dialog to show in a more nuanced way how this "creed" holds some organization together. That's not apparent from the rather "red/blue" tone of the discussion here, which does not actually refer to any particular use of constitutional law to increase organizational coherence. Instead, you seem almost entirely devoted to not demonstrating that constitutional law successfully performs its function: your last sentence even misstates the purpose altogether.
 

Revision 9r9 - 22 Mar 2008 - 15:04:31 - EbenMoglen
Revision 8r8 - 18 Mar 2008 - 21:18:11 - IanSullivan
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