1. The Rule of Law. The people are sovereign and their will is expressed through law.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government is bound to respect.

4. Equal Political Rights. Each person is a sovereign political actor; therefore each person has an equal right to participate in government.

5. Separation of Church and State. The people are sovereign, not God. Laws reflect the will of the people, not the presumed will of God.

6. The Power of the National Government Over the States. The American people are sovereign, not the states. No state has the power to secede from the union or to nullify any federal law.

7. National Independence and the Limited Authority of International Law. The American people as a whole are sovereign and independent and are not subject to any foreign law or power.

Over the centuries since the founding each of these constitutional ideals has blossomed and borne fruit. The principle of popular sovereignty in all of its manifestations has continued to grow and develop, resulting in profound changes in the interpretation of the Constitution.

People have often justified these types of beliefs by appeal to religion and have attempted to enshrine these beliefs in our law. But the Free Exercise Clause does not support the proposition that some people - even a majority of the people - have the right to impose their religious beliefs upon others. To the contrary, religious belief is not even a legitimate reason for the law to treat groups of people differently or interfere with their fundamental rights.

Under the Equal Protection Clause of the Constitution gays and lesbians are entitled to equal rights, including equal marriage rights, because the love that they have for each other is indistinguishable from the love that men and women have for their partners. Their relationships are just as valuable to themselves and to society – just as important and just as sacred as the love between heterosexual couples. In that respect we are all created equal.

‘Hate speech’ is not easy to define. As Justice Potter Stewart said about obscenity, “I know it when I see it.” What’s ‘funny’ to one person is offensive to another, and people disagree about what kinds of behavior cross the line from poking fun, to fair political commentary, to expressions of scorn and contempt, to threats or incitement to violence. But some words and symbols unequivocally express hatred of racial, ethnic, religious, or other groups.

In the United States one particularly virulent form of expression is associated with hatred and prejudice – the burning of a cross. Originally a traditional Scottish custom of signalling, following the American Civil War cross burning was adopted by guerrilla groups such as the Ku Klux Klan (Klan) as a symbol of racial supremacy and as a means of terrorising the newly freed slaves. The burning cross was glorified in the wicked movie The Birth of a Nation (1915) that depicted the Klan as heroes and saviors. Cross burnings were common at Klan rallies throughout the 1920s at a time when lynchings were commonplace and the Klan was at the height of its power. The burning cross was used as a warning and a threat to any person seeking to improve the political or economic condition of the black race.

While the Klan and related militant far-right organisations still exist in the United States, they exercise no political power and as a practical matter can no longer openly hold public rallies where crosses are burned – the public outcry would overwhelm their puny expressions of hatred, and it would be political suicide for any politician to be publicly identified with the Klan. However, there are still occasional incidents of cross burning, sometimes at rallies on private land, sometimes on another person’s property as an expression of hatred aimed at a specific individual or family.

In recent decades the United States Supreme Court has decided two cases involving cross burning – R.A.V. v. City of St. Paul (1992) and Virginia v. Black (2003). In each case the defendants were arrested and convicted of a crime for burning a cross, and in each case the Supreme Court reversed the defendants’ convictions. I discuss each of those cases in the article.

Article available here http://ojs.ubvu.vu.nl/alf/article/view/103/184

The twin pillars of representative democracy are acceptance of majority rule and respect for the rule of law. The purpose of participating in political activity in a representative democracy is to become part of a majority that is capable of making law. Any segment of society that does not accept as legitimate the law that the majority creates - any group that does not share the norms of majority rule and the rule of law - has no reason to participate in the political life of the community.

The Patriot Movement is such a group. The Patriot Movement has contempt for politics and has cut itself off from political debate in this country. Its members reinforce their own beliefs without listening to others. They believe that the national news media is “nothing but the official mouthpiece of the government,” and have adopted “alternative system[s] of communication: mail order book services, computer bulletin boards, gun shows, Bible camps, pamphlets, periodicals and short-wave broadcasts . . . .”

The alienation of the Patriot Movement is not idiosyncratic. Rather, it is symptomatic of a larger pattern. The Patriot Movement is merely an extreme example of political alienation in American society. In the conclusion of this Article, I describe six ways to counter the political alienation typified by the Patriot Movement, thereby strengthening the processes of representative democracy.

Another powerful strategy for classifying legal arguments is to identify the logical structure of the underlying reasoning. Richard Posner and Vincent Wellman, for example, identify three categories of legal reasoning: formalism, analogy, and realism. The advantage of this system of classification is that the logical strength of different kinds of arguments can be compared and assessed. This system of classification is useful in evaluating the relative merits of *436 formalism and realism, as well as for inquiring into the structure of reasoning by analogy.

Over the last two decades legal scholars have developed a third method of categorizing legal arguments. This approach is primarily descriptive, in that it attempts to describe the variety of arguments that lawyers employ in the practice of law and judges use in their opinions. Akhil Amar, for example, recently observed that we interpret the Constitution: through a variety of techniques--by parsing the text of a given clause, by mining the Constitution's history, by deducing entailments of the institutional structure it outlines, by weighing the practicalities of proposed readings of it, by appealing to judicial cases decided under it, and by invoking the American ideals it embraces. Amar further states that "[t]ext, history, structure, prudence, and doctrine--these are the basic building blocks of conventional constitutional argument." This approach has been variously called "eclectic," "polycentric," and "pluralistic." Eskridge and Frickey describe their approach to statutory interpretation as an approach where "a court considers a broad range of textual, historical, and evolutive evidence when it interprets statutes" calling it "eclectic" and "polycentric." The term "pluralistic" was coined by Stephen Griffin, who defined the term as follows: "Pluralistic theories of constitutional interpretation hold that there are multiple legitimate methods of interpreting the Constitution." Michael Dorf prefers the term "eclectic" to describe theories that "recognize that courts employ a variety of forms of argument" and eschews the term "pluralistic" in order to avoid confusion with the concept of cultural pluralism and to avoid implying that there is more than one right answer to questions of constitutional law.

Part II of this Article describes a pluralistic model of law that is based upon the theories of Bobbitt, Eskridge, and Frickey. Five types of legal argument exist: text, intent, precedent, tradition, and policy. Each type of argument may be considered an information set or a category of evidence admissible to prove what the law is.

Part III describes how to measure the persuasiveness of legal arguments. There are two challenges to legal arguments: intramodal and intermodal. An intramodal challenge attacks a legal argument on its own terms, subjecting each type of argument to characteristic lines of attack. I identify twenty-five different types of intramodal challenges. Intermodal challenges attack the legitimacy or the weight of each kind of argument. Each kind of argument advances a different underlying purpose of our system of laws; the weight one assigns to each kind of argument reflects the ordering of these underlying values. The persuasiveness of a legal argument is dependent upon both its intramodal strength and the weight accorded to the kind of argument asserted.

Part IV suggests that the art of "thinking like a lawyer" consists of mastering the ability to understand, create, critique, and evaluate the five types of legal argument. In particular, I discuss how to teach students to critically evaluate policy arguments and how to make the connection between rules and policies.

Accordingly, Part II of this article compares law with science. Historically, law was considered a science and was thought to have the same underlying structure. Both law and science consist of sets of rules; both are concerned with predicting events; both legal reasoning and scientific reasoning use a framework of deductive logic to reason from general principles to particular results; and both legal principles and scientific principles evolve over time.

Over the last century, however, legal scholars have rejected the identification of law with science. The principal difference between law and science is that while science is based upon and must be reconciled with objective observations of nature, law arises from value judgments.

Part III uses the structure of the syllogism to explain the difference between easy cases and hard cases. Easy cases are governed by unambiguous legal rules of unchallenged validity; in such cases, the legal conclusion follows deductively from the applicable rule of law. However, as several scholars have noted, there are two kinds of hard cases: cases where the applicable rule of law is ambiguous in relation to the facts of the case (questions of ambiguity), and cases where it is uncertain what the applicable rule of law is (questions of validity). Ultimately, all hard cases, both questions of ambiguity and questions of validity, are resolved in the same manner, by resort to the fundamental categories of legal argument. This exposes a second fundamental difference between law and science: while science is grounded in a single source (observations of the physical universe), law springs from multiple sources (text, intent, precedent, tradition and policy), which often give rise to legitimate but conflicting interpretations of the law.

Part IV describes the use of the syllogism in analyzing judicial opinions. Case briefs are not mere syllogisms?they are chains of syllogisms ("polysyllogisms"), in which the conclusions of syllogisms earlier in the chain supply the premises of syllogisms that are later in the chain. Questions of ambiguity arise when the minor premise of a legal argument is challenged, while questions of validity represent a challenge to the major premise of a legal argument. At the base of each chain of syllogisms are premises about the law. The base major premises of each chain of legal reasoning consist of the five types of legal argument, while the base minor premises are the specific items of evidence of what the law states. The polysyllogistic approach thus serves as a formal proof of the pluralistic nature of legal reasoning.

Part V illustrates the limits of syllogistic reasoning by demonstrating how judicial reasoning in hard cases proceeds not by deducing conclusions from factual premises, but rather by evaluating the weight of competing arguments. Furthermore, rather than a "chain" of syllogisms, a more appropriate metaphor for legal reasoning is a "cable" of arguments that acquires persuasive force from the confluence of the different types of argument. Ultimately, the persuasiveness of a legal argument depends upon its susceptibility to attack within each category of legal argument and upon the relative weight accorded to the different categories of legal arguments in the context of the particular case.

In this Article, I argue that formalism, analogy and realism should be considered to be the stages of legal reasoning. First, psychological research suggests that these methods of reasoning correspond to stages of cognitive and moral development. Second, examination of judicial opinions in hard cases reveals that courts progress from formalism, to analogy, to realism, in resolving difficult questions of law. Third, these three forms of reasoning are necessary components in the evolution of rules and standards.

In characterizing these modes of analysis as "stages," I do not mean to imply that analogy is superior to formalism or that realism is superior to them both. In fact, one might reasonably argue, as Justice Antonin Scalia would, that the hierarchy proceeds in the opposite direction, in that one is forced to resort to analogy only where formalism has failed, and that realism is the last resort of all.

It would be even more accurate to reject hierarchy altogether, and the concomitant conceit that one form of legal analysis is superior to another. Rather than levels in a hierarchy, formalism, analogy and realism are all stages of a cycle, each of which is necessary for the law to progress. The ultimate purpose of legal analysis is to create a system of laws that is clear, consistent and just, a code of conduct that is universally understood and accepted. But this is a task that is beyond human ability. As H.L.A. Hart observed, a perfect system of laws cannot be created "because we are men, not gods." However, formalism, analogy and realism each play a critical role in the attempt to create a code of conduct that is logical, predictable and fair.

Accordingly, Part I of this Article defines formalism, analogy and realism by describing the psychological theories of James Mark Baldwin, Jean Piaget and Lawrence Kohlberg insofar as they shed light upon the cognitive and moral aspects of legal reasoning in general and formalism, analogy and realism in particular. Formalism represents the "rule-bound" thinking characteristic of the Piagetian stage of concrete operations and the Kohlbergian stage of conventional thought. Realism, whose concern is what the law might be, represents the Piagetian stage of formal operations and the Kohlbergian stage of postconventional thought. Reasoning by analogy straddles both stages; formalist analogies are concrete and conventional, while realist analogies are abstract and postconventional.

Part II illustrates how formalism, analogy and realism are sequentially invoked to resolve hard cases. When society changes, or other unexpected events occur that give rise to unforeseen legal problems, formalist rules fail us and we rely upon analogies. When these analogies prove insufficient as well, we turn to realism, balancing all of the underlying values and interests to develop new rules of law. In hard cases, reasoning by analogy serves as a bridge between formalism and realism. Part III argues that the evolution of rules into standards, and standards into rules, also demonstrates the stages of legal reasoning. Evolution of the law in both directions is achieved by drawing analogies. Realist analogies help turn rules into standards and formalist analogies help turn standards into rules. The law evolves from rules to standards and back again in an unending cycle of assimilation and accommodation.

I conclude that none of the three modes of analysis standing alone is adequate to produce a clear, consistent and just system of laws. Legal progress depends upon using all three modes of analysis.