A truly inclusive democratic politics must be understandable, or cognitively tractable, for ordinary people busy with the rest of their lives. This extends not only to everyday politics and policy, but to constitutional politics as well—non-specialist democratic citizens should be able to grasp the fundamental law that governs them and imagine their own role in shaping it as political agents. Yet these requirements raise a difficulty: in many countries, including the United States, constitutions are treated as the exclusive domain of (...) lawyers and judges. As a result, constitutional matters are typically discussed using legalistic jargon that is inscrutable even to non-specialist lawyers, let alone ordinary citizens. How then can constitutional politics be made legible to ordinary citizens? In this essay, I argue this challenge is partly one of political ideas—specifically, the ideas ordinary citizens use to think about their constitutions, or their folk constitutionalism. This may sound strange because insofar as constitutions are treated as lawyers’ exclusive turf, the problem may seem to be one of practice, not merely ideas. But popular practices of what scholars like John Finn and Elizabeth Beaumont call popular or civic constitutionalism involve citizens and social movements in transforming constitutions. These transformations often occur behind the backs of everyone involved, as new frames and understandings come to gradually transmute constitutional meaning, which in turn pervades the public political culture and reshapes the public’s constitutional imagination. I suggest we need ideas that more closely reflect what democratic citizens already do in democratic constitutional politics, so that they can do it more self-consciously and dispel the impression of an anti-democratic lack of control that recent constitutional innovations reveal to be illusory. I explore the utility of ideas of unwrittenness and functional multi-textuality to the end of a folk constitutionalism appropriate for democracy. (shrink)

This chapter contains sections titled: Introduction The Weakest Meaning of “Constitutionalism” Constitutionalism as a Theory Particular and General Constitutionalism Explicit and Implicit Constitutions Constitutionalism and Written Constitutions Constitutionalism and Constraint Empowerment and Authority Democracy: Constraint or Empowerment? Constitutionalism versus Democracy Popular Sovereignty Judicial Review of Legislation Concluding Remark Notes.

Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat (...) the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny. (shrink)

Constitutionalism: Past, Present, and Future will offer a definitive collection of Professor Dieter Grimm's most important scholarly writings on constitutional thought and interpretation. The essays included in this volume explore the conditions under which the modern constitution could emerge; they treat the characteristics that must be given if the constitution may be called an achievement, the appropriate way to understand and interpret constitutional law under current conditions, the function of judicial review, the remaining role of national constitutions in a (...) changing world, as well as the possibility of supra-national constitutionalism.Many of these essays have influenced the German and European discussion on constitutionalism and for the first time, much of the work of one of German's leading scholars of public law will be available in the English language. (shrink)

As a metaphysic of human persons, constitutionalism in its most general form is the view that human persons are constituted by their bodies, but are not strictly identical to them. The relation between human persons and their bodies is that of constitution, a type of unity relation whose relata are strictly nonidentical; “constitution is not identity”, as the phrase goes. As the literature on constitutionalism is plentiful the proponents and critics of the view are many the author will (...) interact principally (though not exclusively) with the brand of constitutionalism defended by Lynne Rudder Baker. Constitutionalism runs afoul of an independently plausible principle regarding the relationship between persons and their mental lives, what Andrew Bailey has called the priority principle. The principal motivating factor behind the priority principle is that human persons are the ultimate source or originator of their mental lives. (shrink)

Media theory lacks a convincing account of the actual, and desirable, relationship between media and the state. It therefore offers weak normative guidance for policy. Media constitutionalism is a new theoretical approach emphasizing that the media in liberal democracies are, and should be, a mediating institution between state and society, rather than simply existing as an institution that is free of the state. This account reflects the economic reality of concentrated gatekeeping power in the media sector, and the necessity (...) of maintaining constitutional checks and balances on this power in order to maintain democratic legitimacy. Through examining a case study of the Leveson Inquiry in the UK, the value of media constitutionalism as a framework for understanding media institutions in liberal democracy is illustrated, and an explanation is provided of the Leveson inquiry’s failure to generate fundamental changes in the UK media. Media constitutionalism is a more complete theory of the media in democratic polities which can provide guidance for future developments such as the development of artificial intelligence. (shrink)

This article argues that the opposition between political and legal constitutionalism can be traced to a cleavage in what philosophers have called the ‘social imaginary’: the shared understandings that underpin social life. Since social imaginary understandings are by their nature nebulous and ill-defined, political and legal constitutionalism should not be thought of as competing theories or heuristic models, but—more abstractly—contrasting ways of imagining the political world. Drawing on historical and contemporary examples, I argue that my claim is supported (...) by the way in which legal constitutionalism embedded itself as the governing idea in the United States and in France, and also by the failure of the ‘new Commonwealth model of constitutionalism’ to yield a genuinely distinctive alternative to political and legal constitutionalism. (shrink)

Thomas Sattig has argued recently that constitutionalism renders determinism about the actual world false, just in virtue of ordinary facts about ordinary middle-sized material objects. However, it seems that, if determinism about the actual world is false, this should be so for reasons of physics rather than in virtue of ordinary facts about ordinary objects. This is the problem of cheap indeterminism. Sattig also claims, however, that constitutionalists can solve this problem if they abandon an attractive and promising solution (...) to the classical grounding problem affecting their view. In this paper I argue that, against his claims, constitutionalists can solve the problem of cheap indeterminism and the grounding problem simultaneously. (shrink)

Constitutionalism in an Age of Diversity James Tully. these ambassadors from Haida Gwaii conciliate the goods which appear irreconcilable to us? To discover the answer, and learn our way around on this strange common ground, we need to ...

This article uses Böckenförde’s dictum and Williams’s paradox of liberalism as a framework to critically analyse the current theoretical literature on democratic regression and rule of law backsliding in liberal democracies. It argues that the current literature is too strongly focused on (a) the problem of militant democracy (thereby neglecting militant constitutionalism) and (b) on the formal institutional safeguards that are needed to make liberal democracies resilient (thereby partially neglecting the need for a public ethos). In addition, it claims (...) that such an ethos not only implies a democratic attitude but also a patriotic or constitutional attitude. (shrink)

This short contribution argues that Professor Mark Tushnet’s scholarship has always been animated by his deep commitment to democratic ideals. Tushnet’s writings on different constitutional law topics reveal his consistent commitment to democracy as a foundational value of his constitutional thinking. As a constitutional law scholar, he is particularly interested in the concept of popular constitutionalism. The key feature of popular constitutionalism is that the people ultimately control the interpretation of constitutional law. In his own articulation of popular (...) constitutionalism, Professor Tushnet seeks to retrieve and reinvent this prominent tradition of American constitutionalism. Building upon the work of Larry Kramer’s seminal historical account of popular constitutionalism, The People Themselves: Popular Constitutionalism and Judicial Review, Professor Tushnet argues that one key feature of this model is that it is a dialogic process. The picture that emerges from the sketches of popular constitutionalism clearly reveals that Professor Tushnet’s conceptualization of popular constitutionalism is not the case against judicial review as such, or, even worse, against the courts and their independence. The core claim of his work is that judges are no better than citizens in making informed decisions about their political choices. (shrink)

One of Professor Tushnet’s many legacies is his exposition of strains of constitutionalism other than liberal constitutionalism. He has crafted sophisticated accounts of authoritarian constitutionalism and illiberal constitutionalism and offered thought-provoking ideas on Ernst Fraenkel’s concept of the dual state. His attempts at pluralizing constitutionalism have not only brought analytical clarity and allowed us to theorize the regimes that do not fit into the dichotomized framework of authoritarianism versus liberal constitutionalism, but also have important (...) normative implications for constitutional design and strategy. This chapter draws on Professor Tushnet’s contributions on nonliberal constitutionalism and the dual state to examine four issues pertaining to the nature, structure, and significance of the dual state, as well as to the stability of mixed constitutions. (shrink)

The theory and practice of constitutionalism is tightly interwoven with references and appeals to values. However, these references and appeals frequently remain undertheorized and are seldom connected directly to philosophical theories of value. This chapter outlines some ways in which such connections might be established.

The eleven essays in this volume, supplemented by an editorial introduction, centre around three overlapping problems. First, why would a society want to limit its own sovereign power by imposing constitutional constraints on democratic decision-making? Second, what are the contributions of democracy and constitutions to efficient government? Third, what are the relations among democracy, constitutionalism, and private property? This comprehensive discussion of the problems inherent in constitutional democracy will be of interest to students in a variety of social sciences. (...) It illuminates particularly the current efforts of many countries, especially in Latin America, to establish stable democratic regimes. (shrink)

This chapter deals with a brief word about the Christian doctrine of Incarnation. The doctrine of the Incarnation, which takes Jesus Christ to be a person fully human and fully divine, requires a slight modification of constitutionalism. Constitutionalism seems to have an advantage over mind‐body dualism about Christ's nature: his human nature is wholly material and his divine nature is wholly immaterial. The chapter also focuses on Christian doctrines of resurrection of the dead. Next, it discusses St Thomas (...) Aquinas's views in particular, and points to a few difficulties it has. It shows how constitutionalism can avoid Thomas's difficulties and provides an understanding of the doctrine of resurrection without immaterial souls. Aquinas gives a way to distinguish between Smith's and Brown's souls between death and the general resurrection. Separated souls are individuated by the bodies that they long for. Each separated soul has an affinity for the body with which it was united during earthlylife. (shrink)

The subject of this book is the social and political meaning of constitutional texts to the detriment of their legal concretization. Focusing on the discrepancy between the hypertrophically symbolic function of constitutions and their insufficient legal concretization, it offers a critical counterpoint to constitutional theory that treats constitutional texts as a panacea to solving political, legal, and social problems. In contrast to the premises of Niklas Luhmann's systems theory regarding law and constitution in world's society, symbolic constitutionalization is approached here (...) in both a comprehensive and far-reaching perspective. Chapter 1 sets out the debate about symbolic legislation. Chapter 2 explains the notion of symbolic constitutionalization as a problem embracing the whole legal system. Chapter 3 approaches the issue in terms of allopoiesis of law, characterizing it primarily as a problem in peripheral modernity and referring to the Brazilian experience. The final chapter discusses the tendency to a symbolic constitutionalization of world society in the scope of a paradoxical peripheralization of the centre. (shrink)

This essay analyzes neo-liberal economic agreements and legal and political frameworks or what has been called the “new constitutionalism,” a governance framework that empowers market forces to reshape economic and social development worldwide. The article highlights some consequences of new constitutionalism for caring institutions specifically, and for what feminists call social reproduction more generally: the biological reproduction of the species; the reproduction of labor power; and the reproduction of social institutions and processes associated with the creation and maintenance (...) of communities. New constitutional governance frameworks fundamentally reshape conditions under which the care of human beings takes place. Caring institutions once governed by enabling professions geared to universal care are now determined increasingly by market values and private forces, and driven directly by the profit motive. This is one of the reasons why neo-liberalism is increasingly contested in both the North and the global South. (shrink)

This paper has several aims. Its main interpretive task is to argue that the democratic aspirations of contemporary critical theory are informed and haunted by an essentially Hegelian conception of constitutional order that I describe in part 1, according to which the modern state represents an institutional structure that integrates society through rational activity by mediating between the different interests of various social strata, connecting them in a common enterprise—haunted, because this Hegelian vision of making individuals free and “at home” (...) in the modern world, reconciled to it by virtue of being able to comprehend their social order as the work of their own shared reasons, remains a griping one, but one that critical theorists starting with the Left Hegelians view as increasingly implausible under modern social conditions. In section 2, I trace the decline of confidence in the prospects for the rational/mediational integration of society Hegel envisioned through Horkheimer and Adorno, and discuss some relevant aspects of Habermas’s initial reception of their views. Section 3 argues that the conceptions of democratic constitutional politics offered by Habermas and Benhabib should be read as attempts to recover, in a critical manner and under changed conditions, Hegel’s idea of social order as the product of rational activity. Along the way, I will make three interpretive and critical points: first, the existence of this link to Hegelian conceptions of constitutionalism demonstrates that interpretations of Habermas’s later work that read him as having broken with the tradition of Left Hegelianism are overstated—my reading of Habermas highlights his essentially Hegelian proceduralism and the social theoretic dimension of his work, and should challenge people who think of him as a neo-Kantian moralist. Second, this Left Hegelian social theoretic backdrop provides a stronger normative justification for the practice of democratically rearticulating constitutional norms—along with its apparent demotion of the stabilizing virtues of the rule of law—than the contextual one that some legal theorists have so far offered. Thirdly, I will comment on the shortcomings of Habermas’s conception of democratic constitutionalism, as well as Benhabib’s modified concept of “democratic iterations,” along with some brief suggestions on how this set of ideas should be developed. (shrink)

The central argument of this book is that liberalism, constitutionalism, and democracy, as well as, specifically, liberal constitutional democracy all work, when they do, because they serve the mutual advantage of the politically effective groups in the society through coordination of those groups on a political and, perhaps, economic order. These arguments are applied both to the early history of constitutional developments in the United States and to contemporary transitions from autocratic regimes to market democracies. A subsidiary claim is (...) that constitutional political institutions and democratic procedures generally require not so much active support as merely acquiescence in order to survive and work. These are explanatory theses, not normative claims, but they have relevance for normative claims if one takes seriously some relative of Kant's dictum that ought implies can. If we are to insist that some form of government is normatively right for a particular society, we must be able to say that it would or could work for that society. It is commonly argued that what makes democracy right is that it works by consent. If so, it is such a distressingly minimal form of consent—acquiescence—as to be normatively disqualified. If we rule out mere acquiescence as adequate for consent, it seems likely that no credible argument can be adduced to defend liberal constitutional democracy in any detail on grounds of consent or contractarianism. Hence, concern for workability, which should be central to any moral assessment of principles of social order, undercuts the entire consent school of political theory. (shrink)

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, (...) the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law. (shrink)

The article examines the compatibility of agonistic democracy and populism as well as their relationship to the idea of constitutionalism. The first part shows that Chantal Mouffe’s recent attempts to reconcile her normative approach of an agonistic pluralism with a populist style of politics are not fully convincing. Although there are undeniable commonalities between an agonistic and a populist understanding of politics – the appreciation of conflict, the rejection of moralistic and juridical modes of conflict resolution etc. – the (...) populist mode of the construction of the people (and the denunciation of political opponents as enemies of the people) risks impeding the transformation of antagonistic into agonistic modes of political contest. The tensions between agonism and populism are especially evident in matters of constitutionalism. This topic is examined in the second part of the article, which provides some ideas for reducing the normative and institutional blind spots of contemporary theories of agonistic democracy. It focuses on elementary principles for an agonistic concept of democratic constitutionalism that differs from the populist view of the relationship between politics and law, especially in respect of its interpretation of the concept of ‘resistibility’ of legal norms. (shrink)

The article presents a plebeian strand of republican constitutional thought that recognises the influence of inequality on political power, embraces conflict as the effective cause of free government, and channels its anti-oligarchic energy through the constitutional structure. First it engages with two modern plebeian thinkers – Niccolò Machiavelli and Nicolas de Condorcet - focusing on the institutional role of the common people to resist oppression through ordinary and extraordinary political action. Then it discusses the work of two contemporary republican thinkers (...) – Philip Pettit and John McCormick – and contrasts their models of ‘contestatory’ and ‘tribunician’ democracy. Finally, I incorporate a political economy lens and propose as part of republican constitutionalism not only contestatory and tribunician institutions but also anti-oligarchic basic rules to keep inequality and corruption under control. (shrink)

Liberal constitutionalism has always relied on the existence of a national community as a political form within which it can function. But the need of national communities to enact the myth of a unified people can pose a threat to liberal constitutionalism in two ways. The first is by characterizing certain forms of dissent as not just an expression of difference but a threat to the legitimacy of the state. Second, the absence of a specifically liberal theory of (...) political membership means that the logic of national unity can be used to underwrite a politics that is in tension with the values of liberal constitutionalism. Not all populisms are right-wing. But almost all right-wing populisms rely on some form of nationalism. The tensions between liberal constitutionalism and nationalism have never been fully resolved. They are often simply managed. But under the pressure of the populist quest for unity, nationalism can threaten to overwhelm liberalism. (shrink)

Constitutionalism and the Rule of Law are related ideas about how the powers of government and of state officials are to be limited. The two ideas are sometimes equated. But constitutionalism, generally understood, usually refers to various constitutional devices and procedures, such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences, and respect for individual rights, which are partly (...) constitutive of a liberal democratic system of government. The Rule of Law, on the other hand, embodies certain standards that define the characteristic virtues of a legal system as such. (shrink)

Global constitutionalism : positivism and international law -- International trade law : theories and practices in negotiations -- Making rules in the WTO : negotiations from Doha to Bali -- North-South controversy : developed and developing countries in the WTO -- Self-determination and minority rights under international law -- Human right : the interlocutor of global constitutionalism -- Asian approaches to international law -- The future of international law.

Constitutionalism offers a governance order a set of normative values including, amongst others, the rule of law, divisions of power and democratic legitimacy. These normative values regulate the relationship between constituent and constituted power holders. Such normative constitutional legal orders are commonplace in domestic systems but the global constitutionalisation debate seeks to identify a constitutional narrative beyond the state. This book considers the manner in which the global constitutionalisation debate has neglected constitutionalism within its proposals. It examines the (...) role normative constitutionalism plays within a constitutionalisation process, and considers the use of community at both the domestic and global governance levels to identify the holders of constituent and constituted power within a constitutional order. In doing so this analysis offers an alternative narrative for global constitutionalisation based within normative constitutionalism. (shrink)

Globalization is a topic of some anxiety among international lawyers. On the one hand, its fluid dynamics — fragmentation, deformalization and empire — undermine traditional diplomatic rules and institutions. On the other hand, the effort to reimagine international law in purely managerial terms appears intellectually shallow and politically objectionable. To avoid marginalization and instrumentalization, many lawyers have begun to think about international problems through a constitutional vocabulary and have often cited Kant in that connection. This Article argues that, while it (...) is always possible to grasp the world through a constitutional vocabulary, this does not provide determinate answers to international problems. Instead of an institutional architecture or a set of legal rules, constitutionalism is best seen as a mindset — a tradition and a sensibility about how to act in a political world. Contrary to a widespread assumption, Kant’s political writings may also be read in this fashion and, if so, a meaningful international transformation might necessitate not only legislative or institutional intervention but a professional and perhaps spiritual regeneration. (shrink)

Interest in constitutionalism and in the relationship among constitutions, national identity, and ethnic, religious, and cultural diversity has soared since the collapse of socialist regimes in Eastern Europe and the former Soviet Union. Since World War II there has also been a proliferation of new constitutions that differ in several essential respects from the American constitution. These two developments raise many important questions concerning the nature and scope of constitutionalism. The essays in this volume--written by an international group (...) of prominent legal scholars, philosophers, political scientists, and social theorists--investigate the theoretical implications of recent constitutional developments and bring useful new perspectives to bear on some of the longest enduring questions confronting constitutionalism and constitutional theory. Sharing a common focus on the interplay between constitutional identity and individual or group diversity, these essays offer challenging new insights on subjects ranging from universal constitutional norms and whether constitutional norms can be successfully transplanted between cultures to a consideration of whether constitutionalism affords the means to reconcile a diverse society's quest for identity with its need to properly account for its differences; from the relation between constitution-making and revolution to that between collective interests and constitutional liberty and equality. This collection's broad scope and nontechnical style will engage scholars from the fields of political theory, social theory, international studies, and law. Contributors. Andrew Arato, Aharon Barak, Jon Elster, George P. Fletcher, Louis Henkin, Arthur J. Jacobson, Carlos Santiago Nino, Ulrich K. Preuss, David A. J. Richards, Michel Rosenfeld, Dominique Rousseau, András Sajó, Frederick Schauer, Bernhard Schlink, M. M. Slaughter, Cass R. Sunstein, Ruti G. Teitel, Robin West. (shrink)

The tense relationship between constitutionalism and democracy has been a frequent topic of discussion among academics and politicians. In this Article, I present and critically discuss four different, contemporary approaches to this conflictive relationship between constitutionalism and democracy. I shall call these four different responses: (i) against democracy; (ii) for constitutionalism (or “for constitutional restoration”); (iii) against constitutionalism; and (iv) for democracy (or “for democratic restoration”). In particular, I give some reasons in favor of (some version (...) of) the latter position (“for democracy”), which I identify with the idea of a “conversation among equals.”. (shrink)

This chapter addresses the constitutionalization of biolaw in Colombia. The subject will be treated as follows. The second section will refer to the constitutionalization of law in general, its elements and the idea of constitutional supremacy attached to it. For its part, the third section will address the conceptualization of biolaw as a legal discipline. The relationship between biolaw and the constitutionalization of law, especially in the Colombian Constitutional Court ’s case law, will be developed in the fourth section. The (...) main conclusion is that biolaw, as a legal discipline in Colombia, has not made great progress at the legislative level but rather in the Constitutional Court through the emergence of some jurisprudence based upon international comparative law. This, according to the authors, has brought relevant benefits for Colombia in the protection of so-called fourth generation human rights or biorights. (shrink)

The challenge of constitutionalization arises, first of all, from the positivization of moral principles in law, elaborated by an Enlightened rational jusnaturalism. From its inception, according to some ethical perspectives, a crisis of the artificial character of the law occurs with a concomitant dissolution of the Kelsenian legal science of positive law, whose formal paradigm is rigidly centered on procedures of authorization and competence. To this outmoded Kelsenian model are opposed theories of moral justification that invoke forms of foundational rationality (...) and, thereby, shift the focus and emphasis from dynamic-voluntarist to static elements. It is believed that the Constitution has filled up the ‘legal space’, redrawing within the boundaries of the law the classic dialectical tension of natural law/positive law, and circumscribing, through the requirement of justification, the previously irreducible Kelsenian space of interpretative discretion. However, is constitutionalization the irreversible crisis of legal positivism and the abandonment of the methodological disenchantment of Kelsen legal science? In this chapter, the predominant conception of constitutionalization is placed into question by analyzing different strategies for the composition of legal agreements, and reemphasizing the indispensability of some central aspects of the Kelsenian tradition. The attempts to refound forms of moral objectivity, situated between procedural strategies and comprehensive ethics, contain the underlying risk of a moralization of law: a risk which can only reinforce the disorientation of contemporary jurisprudence through its preceding rejection of a disenchanted and sober reaffirmation of the rationale of legal positivism. Only the latter is able to understand the tension between law and the multiplicity of ethical viewpoints existing in our fragmented, contemporary societies, without claiming to lead them back to a universal moral point of view with a transcendental foundation. (shrink)

Is there evidence of constitutionalism in classical Confucian political thought? In Sungmoon Kim's book on Confucian virtue politics, he argues that that Mencius (Mengzi, fourth century BCE) and Xunzi (third century BCE) are constitutionalists in the following sense: they expressed a commitment to creating durable institutions, one of whose primary aims is to constrain the exercise of legitimate political authority and facilitate good and proper uses of political authority. But for many political thinkers, the sort of constitutionalism that (...) really matters is the sort that entails a commitment to "constitutional remedies." Roughly, a constitutional remedy is some sanctioned means of enforcing the constraints or correcting political authorities who fail to abide by them. Moreover, it is often thought that the remedies should be entrenched – that is, widely recognized and regarded as beyond the legitimate power of the political authorities to change easily. Most decent political thinkers are constitutionalists in the the weak sense that they think there should be durable institutions that constrain abuses of power and facilitate good uses of power. Fewer go so far as to say that there should be entrenched checks and balances on that power, so that people's well-founded objections have something more than just rhetorical force against abuses of power. -/- In this paper, I examine whether Mencius and Xunzi would qualify as constitutionalists in the robust sense that presupposes entrenched remedies. I find that Mencius has some political commitments that might make him friendlier to aristocratic remedies than to democratic ones, but that his reluctance to divide political authority among non-ideal agents makes it difficult to know whether he would accept constitutional remedies of any sort. And my findings with respect to Xunzi are similar, but a modicum more hopeful: at best, Xunzi could be stretched to underwrite some aristocratic constitutional remedies, and he seems somewhat more open to dividing power among non-ideal agents. Neither Mencius nor Xunzi were robust constitutionalists, but it is historically and philosophically informative to ask how near they came to robust constitutionalism, and in which respects they fell short of it. -/- In the course of developing and justifying my interpretation, I call attention to two considerations in assessing an historical thinker's commitment to robust constitutionalism: first, whether the thinker invokes the threat of rebellion as a way of countenancing it or merely as a descriptive claim about likely consequences of bad governance; second, whether non-ideal political agents are empowered to check abuses of power. Only when the thinker actually countenances rebellion and allows that non-ideal political agents can check abuses can the thinker be plausibly described as a robust constitutionalist. (shrink)

The debate on political constitutionalism has entirely neglected the constitution-making dimension. This is probably due to the fact that constitution-making usually brings with it undesirable outcomes such as the entrenchment of rights or structures. These outcomes do not respect reasonable disagreement among citizens because they violate the only fair system for settling disagreement: majority rule and equal voting rights. This article argues that political constitutionalists may regret the absence of any claim about constitution-making. Either they are overlooking certain problems (...) inherent to the electoral process that is supposed to tackle disagreement or, even worse, they are downplaying the entrenching effect of ordinary political processes by ignoring the redemptive properties of constituent power. In both cases, their claims undermine the political dimension of constitutionalism. (shrink)

Both Animalism—the metaphysical thesis that “each of us is numerically identical with an animal”—and Constitutionalism—the metaphysical thesis that each of us is identical to a person and constituted by (not identical to) an animal—have argumentative support. For Animalism: (1) an argument from the evolution of the use of the word ‘I’ in animals (Snowdon); (2) an argument from the “Link thesis” that holds that there’s a link between personal identity and human-animal identity (Snowdon); (3) an argument from the “thinking (...) animal” problem for non-Animalists (Olson); (4) an argument from a claim that a “theory of composition would tell us what we are” (Olson). For Constitutionalism: (1) an argument from biotechnological devices—neural implants, sophisticated prostheses; (2) an argument from the possibility of bodily resurrection. The chapter concludes that Constitutionalism is superior to Animalism. (shrink)

Constitutionalists and deliberative democrats show increasing interest in deliberative constitutionalism. They seek to reconcile two prima facie conflicting camps in legal and political philosophy:...

This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation (...) feel bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)

David Hume’s constitutional theory is often reduced to his insights regarding the principles that should inform the design of constitutions. This interpretation has extended to his History of England (the ‘History’), in which Hume is typically thought to show how liberty in England emerged as a consequence of establishing the proper constitutional arrangements between the institutions of Parliament and the Crown. I argue that the History is better understood through Hume’s theory of convention. Approaching the History in this way resolves (...) the divergent scholarly interpretations of its constitutional narrative, and reveals that Hume’s conception of constitutionalism depends less on the institutional settings established by a constitutional document, than on the prevailing attitude towards law and political authority among government officials and the population more generally. Specifically, liberty is founded on the understanding that laws apply universally and inflexibly, and that all exercises of political authority must occur according to law. (shrink)

This chapter contains section titled: What Constitutions Are What Constitutions Do Are Constitutions Desirable? References.

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just (...) Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism. (shrink)

As South Africa’s governing party between 1994 and 2024, the African National Congress (ANC) was in poll position to use the powers of state to effect the imaginary of the 1996 Constitution. This imaginary provides for the overturning of colonial and apartheid legacies to actualise the human potential of those previously excluded on the basis of race, gender, class, and sexuality. Due to a failure of political imagination, merely the top echelons of economic relations of power were deracialised. Most of (...) the population, and therefore most black people, remain mired in poverty. This failure opened the door to a discourse of anti-constitutionalism aimed at securing impunity for a predatory power elite. Instead of constitutional failure, as anti-constitutionalist detractors would have it, the lack of substantive change should be ascribed to the ANC’s policy decision to embrace a neoliberal form of capitalism, while paradoxically continuing with post-socialist adherences. These are identified as the ‘two-stage theory’ of historical change, which is unpacked along with the related ‘national democratic revolution’ and ‘colonialism of a special type’. How the post-socialist imaginary gave succour to clashing ANC factions is shown–and how it created a political culture at best ambivalent to substantive democracy as envisaged in the 1996 Constitution, and at worst authoritarian. Lubricated by an ethno-racial populism akin to that seen elsewhere on the globe, anti-constitutionalism found policy expression in the new uMkhonto weSizwe Party, founded by former president of the ANC and of South Africa, Jacob Zuma, the main accused in South Africa’s grand corruption known as state capture. (shrink)

In writing the essay on “factions” in The Federalist Papers, James Madison was able to point to one of the major purposes of the new United States Constitution, namely, to deal with the emergence of conflicting interests in the new commercial society. This represents the transformation from classical constitutionalism with its focus on virtue to modern constitutionalism with its preoccupation with the mediation of interests. As such, this transformation points to the reconstruction of the domain of the political.

The transformation of international law has provoked a burgeoning literature on various conceptual and normative questions, such as the nature and legitimacy of international authorities. Constitutional and international scholars have so far been attracted to domestic normative theories such as constitutionalism, democratic legitimacy, and the rule of law. This attraction often comes at the expense of a more fundamental and prior question: How best to carry out this normative investigation and which normative theory to put into use in assessing (...) the moral value of international authorities? This “meta-theoretical question” invites us to investigate the methodology of transnational constitutional theorizing by prompting discussions on which normative theory is more suitable for application at the international level. This review article brings into dialogue two recently published books (Sadurski’s Constitutional Public Reason and Mac Amhlaigh’s New Constitutional Horizons) that partially address this meta-theoretical question by prompting us to reflect on how best to conduct transnational constitutional theorizing. (shrink)

This chapter focuses on constitution-making in the Kingdom of Morocco as a method for the king to ensure royal hegemony and his survival in the country’s turbulent postcolonial history and in contemporary politics. It is therefore a scholarly contribution to a case study that highlights the transition of a traditional state to a postcolonial state under a constitution influenced by the French colonial order, the Moroccan cultural order, and the Islamic religious order. The author argues that unlike all other North (...) African countries, the postcolonial Moroccan state was built in 1955 with the aim of ensuring a powerless multiparty system and a powerful monarchy overseeing political competition between ethnic, class-based, and historically formed political fractions. This chapter examines how the different constitutions (1962, 1970, 1971, 1996, and 2011) served this objective and discusses the meaning of constitutionalism in the Moroccan context. Furthermore, it discusses the ways that prelegal norms have ensured the relative stability with which the Moroccan monarchy has achieved a supreme (if contested) role in Morocco’s political landscape. (shrink)

An excellent sampling of current thinking in the theory and practice of constitutionalism. Each essay was written specifically for this volume by well-known legal and political philosophers. . . . All in all, a first-rate and provocative example of contemporary philosophical concerns. Choice In our constitutional democracy, the dissent and conflict that are the inevitable consequence of free political dialogue point to the importance of reexamining the philosophical premises on which our conceptions of society and government are based. This (...) volume of original essays reviews the foundations of constitutionalism in classical liberal thought and looks at contemporary philosophical perspectives on a wide range of constitutional issues. Written by a distinguished group of philosophers and constitutional scholars, it provides a deeper understanding of the U.S. Constitution as a political instrument and examines the idea of constitutionalism as it functions in our modern world. (shrink)

Besondere Aufmerksamkeit ist auf die Strömung des Societal Constitutionalism zu richten, der von einer fortschreitenden Fragmentierung sowie einer zunehmenden Konstitutionalisierung der verschiedenen – staatsfernen – Teilsysteme ausgeht.

In The Principles of Constitutionalism, Nicholas Barber provides a sophisticated yet highly readable introduction to fundamental constitutional principles. At the same time, Barber seeks to reorient constitutional theory scholarship away from a mistaken ‘negative’ understanding of constitutionalism towards a ‘positive’ understanding. This essay examines that argument. We suggest that the idea of ‘positive constitutionalism’ has a weaker and a stronger sense. In its weak form, the argument calls for greater attention to what constitutions enable as well as (...) what they restrict, and thus serves as a welcome reminder of the full potential of constitutional principles. However, it cannot be regarded as the correction of a widespread mistake. In its strong form, the argument calls for greater recognition that the state’s essential function lies in advancing the ‘well-being’ of its members. Although this amounts to a significant reorientation, it weakens the theory’s claim to universalism. These tensions indicate limitations to efforts to construct general theories of constitutionalism. (shrink)

Rule of law and constitutionalist ideals are understood by many, if not most, as necessary to create a just political order. Defying the traditional division between normative and positive theoretical approaches, this book explores how political reality on the one hand, and constitutional ideals on the other, mutually inform and influence each other. Seventeen chapters from leading international scholars cover a diverse range of topics and case studies to test the hypothesis that the best normative theories, including those regarding the (...) role of constitutions, constitutionalism and the rule of law, conceive of the ideal and the real as mutually regulating. (shrink)