ABSTRACT This article examines the prominent Japanese postwar thinker Maruyama Masao’s critical engagement with his contemporary German legal theorist Carl Schmitt. Maruyama engaged with Schmitt’s decisionistic notion of “the political” and sovereignty since he found it useful in addressing the pathological elements of Japanese political culture, namely, the widespread political passivity and fatalistic ethos of the Japanese public. In his view, such a “decision-avoiding” political culture, which had contributed to the rise of fascism in interwar and wartime Japan, posed a (...) fundamental threat to the viability of Japan’s postwar democracy. Although Maruyama objected to Schmitt’s authoritarian theory of political leadership, he nevertheless believed Schmitt provided important insights into the key concepts of modern politics, such as political agency and the constituent power of the people. In his efforts to foster political subjectivity and liberal individuality in postwar Japan, Maruyama attempted to strike a balance between two extremes: Schmittian normless decisionism, on the one hand, and a politically naïve liberal constitutionalism, on the other. I conclude by suggesting that the hitherto overlooked intellectual affinity between Maruyama and one of the leading Weimar-era constitutional theorists—Hermann Heller—can enrich our understanding of Maruyama’s unceasing effort to formulate and insist on the imperative role of political subjectivity and liberal individuality in consolidating liberal democracy in postwar Japan. (shrink)

This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The creation (...) of a legitimate constitutional regime depends on a shared commitment to a particular and specialized form of language. Out of this simple observation, Schweber develops arguments about the characteristics of constitutional language, the necessary differences between constitutional language and the language of ordinary law or morality, as well as the authority of officials such as judges to engage in constitutional review of laws. (shrink)

This paper deals with the ways in which jurists and law professors applied transnational systems of public law, in particular US constitutionalism and French droit administratif, in their approaches to the state building process in late nineteenth century Argentina. In covering these movements of adaptation of a nascent legal culture to changing ideological and political circumstances, this article attempts to illuminate the strong links between the process of institutionalization of certain academic disciplines or forms of social knowledge, and modern (...) state building in Latin America. (shrink)

This brief essay contrasts two modes of constitutional change: abusive constitutional projects that seek to erode democracy and restorative constitutional projects that aim to repair eroded democratic constitutional orders. Constitutional democracies are eroded and restored via the same mechanisms: formal processes of constitutional amendment and replacement, legislative amendment, changes to executive policies and practices (or respect for conventions), and processes of judicial decision-making. Under the right conditions, abusive uses of these mechanisms for antidemocratic ends can be reversed by prodemocratic or (...) restorative uses. The more difficult question is what kinds of political discourses are most likely to sustain successful processes of democratic rebuilding. In recent work, we have pointed to the role sometimes played by liberal democratic discourses as purported justifications for processes of abusive constitutional change: we label this the rise of “abusive constitutional borrowing.” Less well understood are the kind of discourses likely to sustain successful democratic healing or rebuilding. Often, the most popular discourse is a restorative one, which focuses on repairing damage caused by authoritarians and returning to a constitutional status quo ante. In this essay, we discuss the advantages and disadvantages of restorative constitutionalism as a response to prior episodes of democratic erosion. (shrink)

ABSTRACT This article begins with a consideration of whether the January 6, 2021, attack on the United State’s Capitol building can be considered a form of “legitimate political discourse” and compares the insurrectionists to the Black Lives Matter protest movement. Both movements, as different and antithetical as they are, raised meta-questions about how it is that we establish by means of law the forms to express dissent. It is proposed that “constitutionalism,” namely, the doctrine that the primary means to (...) create and sustain free institutions are constitutions, which were and are result of historical events, i.e., revolutions such as the French, the American, and Haitian, that nonetheless unleashed normative powers and aspirations. After an analysis of constitutionalism through the lens of the US Constitution, the text turns to an analysis of what here are called “constitutional deconstructions.” Six such deconstructions are discussed: of the written constitution itself, of the law, of rights, of the people, of the state, and finally, of the Supreme Court as the protector and ultimate reader of the constitition. In this last section, the 2021 Report of the Presidential Commission on the Supreme Court of the United States is considered. (shrink)

Was liberalism really an outdated ideology in post-1945 European political systems, as claimed by some scholars? The great success of socialism on one side and various forms of Christian Democracy on the other could make that claim appear reasonable. In fact a closer view shows how postwar constitutions in some countries (Italy, France and Germany) presented once again fundamental liberal values, reformulated in different words. One of the roots of that difference is the gap between the Anglo-Saxon approach to (...) liberalism, which takes into account history and communities, and the continental tradition of liberalism, linked to an abstract philosophical approach and highly dependent on long-standing struggles between Churches and the body politic. (shrink)

It has been apparent for at least a decade that liberal constitutional theory is in deep trouble. Of course there are many versions of liberal constitutional theory, but they have essentially no connection to existing practices of constitutional law, considering as practices of constitutional law all the activities of our institutions of government that implicate - interpret, advance, deal with, whatever - fundamental principle. Instead, liberal constitutional theory's vision of the future is nostalgia for the past. For (...) liberal constitutional theorists the Warren Court, or Justice Brennan, basically got everything right, at least in their approach to identifying constitutional law. True, they may have faltered sometimes in implementing constitutional principles, but all that needs to be done today is to appoint justices in the mold of Warren, Brennan, or Thurgood Marshall. And here I really do mean all that needs to be done: No rethinking of what constitutional law is all about seems needed to liberal constitutional theorists. (shrink)

This dissertation argues that the current tendency to define liberal constitutionalism in terms of the impersonal and formalistic ideals of the rule of law diverges from early liberal theories of constitutionalism, which were sensitive to the occasional need for extra-legal discretionary exercises of power to deal with the unpredictable contingencies of politics. This understanding of politics shaped the constitutional and political thought of liberal thinkers from John Locke, David Hume, and William Blackstone to Alexander Hamilton, (...) James Madison, and other Federalists who defended the extraordinary powers of the American presidency. Since these early liberals recognized that it would sometimes be necessary for an executive to perform extraordinary actions in response to unforeseeable events, they were reluctant to place excessive legal checks on executive power. Consequently, they emphasized the importance of limiting executive power to those with "fit characters." In particular, they looked to those politico-moral virtues associated with republicanism to supplement and enhance the constitutional machinery of government that was designed with the ordinary course of politics in mind. Although early liberal theorists and the designers of the American Constitution abandoned many of the core principles of republicanism, particularly its reliance on a virtuous and active citizenry as the best guarantee of free government, they preserved a place for distinctively republican virtues such as patriotism and disinterestedness in the office of the executive. In fact, the Federalists made the American presidency the primary repository of republican virtue in the new government. The first century of liberal constitutional theorists was actually skeptical of the ability of impersonal institutional devices such as the separation of powers and checks and balances to secure a free and effective government without the presence of fit characters. Since formal institutions are imperfect and often inadequate---both in dealing with political contingencies and in checking the executive---these thinkers supplemented legal and institutional safeguards with character requirements to minimize potential abuses of largely indeterminate executive powers irreducible to law. An abiding conviction that uncertainty is the only certainty in politics led them to prefer flexible approaches rather than the rigid formulas in theorizing constitutionalism. (shrink)

Exploring the connection between Bentham and Byron forged by the Greek struggle for independence, this book focuses on the activities of the London Greek Committee, supposedly founded by disciples of Jeremy Bentham, which mounted the expedition on which Lord Byron ultimately met his death in Greece. Rosen's penetrating study provides a new assessment of British philhellenism and examines for the first time the relationship between Bentham's theory of constitutional government and the emerging liberalism of the 1820s. Breaking new ground in (...) the history of political ideas and culture in the early nineteenth century, Rosen advances striking new interpretations based on recently published texts and manuscript sources of the development of constitutional theory from Locke and Montesquieu, the conflicting strands of liberalism in the 1820s, and the response in Britain to strong claims for national self-determination in the Mediterranean basin. He sets out to distinguish between Bentham's theory and the ideological context against which it is usually interpreted. (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)

Neither the historical tradition of American constitutionalism nor those who have theorized about it have promoted political or theoretical designs hospitable to the valorization or promotion of democratic virtue. This article illustrates this point by canvassing practical interpretations of the American constitution, from the document of 1787–1791 to Bush v. Gore, and theoretical interpretations from Madison to Rawls, Dworkin, Ackerman, Elster, Holmes, and other contemporary theorists of liberal constitutionalism and natural law. Exposing these roadblocks to the theory (...) and practice of democratic virtue in America, it argues, provides a critical corrective to current debates about the relationship between constitutionalism and democracy. (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)

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)

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)

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)

ABSTRACT Between April 1820 and April 1822, stimulated by the restoration of the Cádiz Constitution, Bentham devoted himself to writing a number of works on the constitutional reform and colonial rule of Spain, which have been sources of a scholarly debate over Bentham's views on colony. By examining those works, this essay aims to supplement the scholarly debate by drawing attention to a thesis that Bentham developed in his criticism and evaluation of the Cádiz Constitution: a thesis concerning the irreconcilable (...) incompatibilities of liberal constitution and colonisation. I focus on Bentham's critical analyses of the Constitution, and indicate that Spain's colonial rule of Ultramaria not only intensified the weaknesses of the Constitution, but also rendered its merits useless, if not harmful, to the public in both hemispheres. Moreover, I explore the tension that Bentham detected between liberal constitutionalism and colonialism. I maintain that, in Bentham's observation, the civil rights granted by the Cádiz Constitution to the Ultramarians stood to facilitate the enlightenment of citizens and the formation of civil society. As a consequence, the delusion of the Spanish ruling few would be exposed, and the Ultramarians’ discontent with exploitation by such foreign rulers would sow the seeds of disobedience and resistance. (shrink)

This article advances a critical analysis of John Rawls’s justification of liberal democratic nuclear deterrence in the post-Cold War era as found in The Law of Peoples. Rawls’s justification overlooked how nuclear-armed liberal democracies are ensnared in two intransigent ethical dilemmas: one in which the mandate to secure liberal constitutionalism requires both the preservation and violation of important constitutional provisions in domestic affairs, and the other in which this same mandate requires both the preservation and violation (...) of the liberal commitment to international legal arrangements and to the rule of law generally. On this view, the choice to violate constitutional provisions and international legal arrangements is evidence of nuclear despotism. Moreover, this choice does not imply that the ethical foreign policy dilemmas were resolved. Instead, it implies that the dilemmas force liberal democratic governments into implementing ethically paradoxical policy outcomes. (shrink)

Over the last 30 years, scholarship has produced countless books, essays, and articles on populism by investigating it from various perspectives and angles. This article seeks to contribute to this ongoing debate by offering a political-philosophical reconstruction of populism to define such a phenomenon from a multilateral perspective. The essay will proceed as follows: The first section will investigate populism from a purely political-philosophical position, while the second will discuss the constitutional effects of such a phenomenon, to define it mainly (...) as a form of anti-liberal and anti-judicial redefinition of democracy. Moreover, the first section will expose the dichotomy between the so-called left- and right-forms of the populist model and the populist threat to democracy, where the second will address populist constitutionalism and its antithetic relation to liberal constitutionalism.Footnote11 This article is the result of a period of research spent at the CAS-SEE UNIRI – Center for Advanced Studies of the University of Rijeka, Croatia. I wish to thank the Institute and its members for the opportunity to develop this research. Part of this research has been presented at the doctoral seminar of the Doctoral School of History and Philosophical-Social Sciences, University of Rome Tor Vergata. I wish to thank my colleagues Alessandro Ferrara, Matteo Bianchin, Tonino Griffero, Claudia Gina Hassan as well as the doctoral students of our programme, for comments and suggestions. (shrink)

Any attempt to apply Aristotelian political categories to the principles of modern constitutionalism is undoubtedly at risk of anachronism. This paper acknowledges non-trivial differences between the Ancient Greek politeia, as theorised by Aristotle, and the modern constitution. It nonetheless argues that the central principles of the modern liberal constitution can be elucidated within the explanatory frame of the Aristotelian concept of the politeia as a political determination of institutional structures and competences oriented by an interpretation of the public (...) good. The paper is divided in three sections. Section 1 outlines Aristotle’s account of the politeia. Section 2 considers some central principles of modern constitutionalism. Section 3 then examines these principles under an Aristotelian lens. The conclusion sketches a potential objection, implicit in the paper’s arguments, to a recent proposal for a ‘neo-Aristotelian’ normative constitutional theory. (shrink)

In The Leviathan in the state theory of Thomas Hobbes, Carl Schmitt puts forward the claim that there is a ?barely visible crack? in Hobbes's theory of the state that opened the door to liberal constitutionalism. This essay claims that Schmitt's ?thesis of the crack? is composed of two elements: first, Schmitt argues that Hobbes makes a concession to individual conscience in his discussion of miracles; second, Schmitt points out that Hobbes's individualism undermines his notion of the absolute (...) state. As Schmitt relies on an unconvincing critique of Hobbes's discourse on miracles in order to justify his more general claim against Hobbes's authoritarianism, this essay suggests that Schmitt's ?thesis of the crack? is untenable in the form that Schmitt presented it in 1938. An attempt, however, is made to salvage ?the thesis of the crack? by turning to concepts found in Schmitt's Concept of the political and in Political theology. Although Schmitt openly approved of the so?called protection/obedience principle, this essay claims that there are a number of crucial differences between Schmitt's formulation of that principle and Hobbes's own version; an examination of these differences enables us (i) to appreciate the consequences of Hobbes's individualism on his theory of the state and (ii) to shed new light on Howard Warrender's famous claim that Hobbes's sovereign is inherently weak. The essay concludes that in spite of Schmitt's fallacious formulation of the ?thesis of the crack? of 1938, his political theory affords us a rare vantage point from which we can clearly see a case against the association of Hobbes with authoritarianism. (shrink)

'The many virtues of Constitutional Justice are evident throughout the piece. The author should be congratulated for even attempting to construct a normative theory of liberal constitutionalism... Constitutional Justice is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably.' -Law and Politics Book ReviewThis book offers a systematic interpretation of the ideal of the rule of law, arguing that the principles it identifies provide the foundations of a (...) liberal democratic legal order. It explains the essential connections between a range of matters fundamental to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality before the law. The principles of public law are interpreted in the light of liberal legal and political philosophy.Readership: Scholars and students of law, philosophy, and politics. (shrink)

Research Articles Michael Zuckert, Social Philosophy and Policy, FirstView Article.

We argued in earlier work that South Africa's democratic transition accomplished more than abolishing formal apartheid and replacing it with civil and political democracy. The transition also established a platform for “transformative constitutionalism,” an aspiration and generous constitutional framework for South Africa to embark on a postliberal path toward becoming an egalitarian social and economic democracy. Manifestly, the promised social and economic transformation remains largely unfulfilled. Many South Africans blame the constitutional settlement for this failure of delivery, seeing it (...) as a weak compromise with the old regime that restricts socio-economic transformation. We reject this view and assign blame for the failure of the transformative project squarely on the politics and policies of ANC governments in power over three decades. The transformative project was not blocked by the constitutional settlement; it was never attempted. The ANC brought mostly conventional, liberal democratic goals to the transition negotiations. It embraced neoliberalism before the 1996 Constitution was drafted, indeed before the 1994 elections brought the ANC to power. Ironically, during the Final Constitution drafting process (1994-1996), ANC negotiators moved left under the inspiration of and pressure from the Mass Democratic Movement (MDM). The 1996 text is transformative in aspiration and in its toolbox of innovative legal technologies, but the ANC never took it seriously as a guide to policy. If South African politics ever realigns, future activists will find in the 1996 text a storehouse of legal values and tools meant to nourish radical social and economic change. (shrink)

The paper discusses the reactions of different political and constitutional systems reactions to the pandemic and also the impact of COVID to populism, constitutionalism, and autocracy. Beyond the choice between economic and health considerations also applied in liberal democratic countries, which have lead either to “under-” or “overreaction” to the pandemic, certain illiberal regimes used the crisis situation as a pretext to strengthen the autocratic character of their systems. In some cases, this needed an “underreach,” like in Poland (...) to insist on the presidential election, which has been important to entrench the power of the governing party’s incumbent, elsewhere “overreach,” like in Hungary, where an unlimited emergency power of government has been introduced after the very first cases of contagion. These autocratic “overreactions” have breached the formerly used authoritarian legalistic approaches by openly violating their own illiberal constitutions. New “conservative” theories on “common good constitutionalism” emerged to legitimize the necessity of authoritative rule by the executive power. The paper concludes that one possibility to overcome authoritarian populism and restore constitutionalism in crisis situation such as the COVID-19 pandemic would be to rely on the involvement of the well informed public, one that is capable to understand and assess the advice of the meritocratic elite. This kind of participation would also help build up a constitutional culture necessary to preserve the values of constitutionalism. (shrink)

This article responds to the theory of Common Good Constitutionalism as posited by Adrian Vermeule. He argues that a powerful centralized government composed of wise rulers must use law to direct the public towards a proper political and substantive morality to achieve the ends of the common good. This article then explores the broader concept of Integralism, in which Common Good Constitutionalism is rooted, similar in its belief that politics must be concerned with the human good through the (...) centralization of sovereign power. Natural law adherents created Common Good Constitutionalism and Integralism to combat the legitimate societal threat of modern liberal individualism and reintroduce the spiritual common good into our political and legal discourse. Though these arguments have some appeal, both theories are misguided in their understanding of the nature of politics, law, and the United States as a constitutional republic. This article instead suggests a more authentically Catholic salve for the societal wounds inflicted by acidic individualism; a true natural law understanding of the common good which respects the decentralized history and tradition of our country, the limits of political authority, the social priority of local communities above the state, and most importantly, the reality that man’s ultimate end is God’s gift of salvation. (shrink)

We seek to establish a dialogue between democratic and Islamic normative political theories. To that aim, we show that the conception of democracy underlying a prominent Islamic political model is procedural. We distinguish proceduralism from a liberal conception of democracy. Then, we explain how bringing together Islamic political theory and democracy alters the meaning of the latter. In other words, we show that democracy within Islam often means democracy within Islamic limits.

ABSTRACT In recent issues of the Journal of Religious Ethics (2006, 2007), David Little has defended the contemporary regime of international human rights against what he thinks of as the relativizing influences of the genealogical “just‐so” story told by Jeffrey Stout in his Democracy and Tradition (2004). I argue that Stout is correct about just‐so stories, and that Little does not go far enough in his reclamation of liberalism against Stout's “new traditionalists.” The main weaknesses of Little's approach are his (...) insistence on the idea that human rights are to be thought of as natural rights, and that these in turn are to be thought of as self‐evident and self‐justifying. I argue that they are neither: they come to us via a Stoutian just‐so story, and that as part of a broader reclamation of liberalism, they can continue to serve as the basis for the kind of international liberal constitutionalism that Little advocates. (shrink)

Liberal multicultural theories developed in late twenty-first century aims to ensure the rights of the minorities, social justice and harmony in liberal societies. Will Kymlicka is the leading philosopher in this field. He advocates minority rights, their autonomy and the way minority groups can be accommodated in a liberal society with their distinct cultural identity. Besides him, there are other political theorists on the track and Galston is one of them. He disagrees with Kymlicka on some crucial (...) points, particularly regarding the scope of civil rights of the minority groups and the responsibilities of both majority and minority groups for the sake of social harmony and justice. He tries to develop a moral theory of mutualism based on inter-community toleration and constitutionalism. Considering toleration as one of the fundamental liberal virtues he contends that the majority government has the responsibility to make arrangement both for the members of majority and minority groups so that they can build inter personal relation and learn toleration. The paper critically justifies the feasibility of his theory in a liberal society and claims that although Galston’s theory has a higher possibility to be accommodated in liberal societies, it eventually fails. (shrink)

This article will argue that there is a coherent and attractive middle way between common law constitutionalism and the procedural conception of democracy, the two dominant positions on the legitimacy of strong constitutional judicial review. I will explore an intriguing alternative that decouples the legitimizing principles and institutional claims of the two dominant positions and argues that (i) democratic decision-making cannot be legitimate if it violates substantive principles of morality; and (ii) the strong form of constitutional review is problematic. (...) This article will present four theses. First, I will argue that political liberalism, properly defined, can allow us to avoid both the tyranny of the majority and the rule of Platonic guardians. Secondly, even if we can deflect both dangers, there is still real tension between the liberal principle of legitimacy and the procedural conception of democracy. Thirdly, if we accept the liberal principle of legitimacy, we have to grant a pivotal role to the epistemic credentials of our institutions. Finally, I will contend that courts should not be authorized to invalidate statutes on the ground that they violate fundamental moral principles. (shrink)

The book contains twelve essays by Stephen Holmes, Frances M. Kamm, Mária Ludassy, Steven Lukes, Gyorgy Markus, András Sajó, Gáspár Miklós Tamás, Andrew Arato, Timothy Garton Ash, Béla Greskovits, Will Kymlicka, and Aleksander Smolar. The studies explore a wide scope of subjects that belong to disciplines ranging from moral philosophy, through theory of human rights, democratic transition, constitutionalism, to political economy. The common denominator of the studies collected is their reference to the scholarly output of János Kis, in honor (...) of his sixtieth birthday. János Kis is a distinguished political philosopher who, after many years spent as a dissident under the Communist regime, emerged as an important political figure in Hungary's transition to democracy. Currently he is University Professor of Philosophy at Central European University, Budapest. (shrink)

For Rousseau, the primary function of the republican constitution is not to contain state power, but rather to cultivate certain personal dispositions and social forms through which the stability of a political order based on the general will can be realised. Thus, his constitutional projects for Corsica and Poland formulate peculiar constitutional devices aimed at fostering a distinctive vision of austerity as the social horizon of republican politics. I outline how Rousseau's political thought translates to a peculiar conception of (...) class='Hi'>constitutionalism as cultivating stability conditions for the realisation of his principles of political right. In particular, I focus on how Rousseau's conception of austerity illustrates his prescient sense of the source of inequality and domination in liberal societies, insidiously embedded in symbolic and ritual forms. I also address the limitations of austerity as a constitutional antidote to domination in liberal societies. (shrink)

David Richards here argues that the legal interpretation of the US constitution depends on an understanding of the liberal humanist principles which guided the Founders.

Reasonable disagreement is one of the most critical issues in contemporary political philosophy, especially within liberal-democratic constitutionalism. In emphasising the role of disagreement in the relationship between discourse and politics, many scholars such as Jeremy Waldron and Richard Bellamy – against the background of the Rawlsian idea of “reasonable pluralism” – defend the thesis of moral disagreement as the core of political deliberation. By refusing the idea of neutrality, these authors maintain that political discourse cannot be established by (...) simply removing our moral disagree- ment on political values. This essay engages the issue of “discourse and politics” by focusing on some relevant topics: the deliberative conception of democracy; the Rawlsian idea of public reason as a forum for deliberation and discourse; the fact of disagreement and its inuence on the deliberative process. In order to investigate such issues, the paper follows three ways. First, it aims at examining John Rawls’ idea of public reason, by presenting it as a tool to resolve reasonable disagreement in the context of constitutional essentials. The second section deals with reasonable disagreement from a liberal point of view, by trying to focus on some critical remarks which Bellamy raises against Rawlsian political lib- eralism. The third section briefly analyses Waldron’s arguments in defence of reasonable disagreement, as a critique of the deliberative model of democracy. From this perspective, Waldron presents deliberative democracy’s failure in considering political dissent and moral disagreement as two problematic aspects of democracy. (shrink)

In Principes de Politique (1815), Benjamin Constant offers a blueprint for later liberal attempts to retain a commitment to popular sovereignty, while moderating its absolutist tendencies and associations with arbitrary political power. This paper examines some notable tensions, still relevant today, in Constant’s domesticated liberal concept of popular sovereignty. These tensions, I contend, all point to the conclusion that Constant’s project of limiting popular sovereignty by appeal to a sacrosanct domain of rights rests on a liberal interpretation (...) of the general will, which is in fact constitutive for the enjoyment of individual liberties. Section 2 argues that Constant’s location of popular sovereignty in the legislative general will, as determined by elected representatives, does not overcome the problem of the potential arrogation of the popular will by a partisan minority. Section 3 then examines Constant’s views on rights and the implications of his acknowledgement that the enjoyment of liberties depends upon the institutional guarantee provided by constitutional enactment. Finally, in section 4, I demonstrate that Constant’s valorization of individual self-development is inseparable from an idea of political liberty which reflects the priorities of a liberal elite. (shrink)

The transition from a relatively federal to a relatively centralized constitutional structure in the United States has often been identified with the shift from classical to welfare liberalism as a matter of public philosophy. This article argues against that distinction. The liberal argument for federalism is a contingent one, built on approximations, counterbalancing, and political power. A more federalist constitution is not automatically a freer one on classical liberal understandings of freedom. Neither is a more centralized constitution automatically (...) a better match with the ideals of welfare liberalism. The article sketches a constitutional history of federalism from the founding, through an era in which centralization was aligned with skepticism about liberal constitutionalism (for both meanings of liberal), to an era in which centralization was aligned with increases in liberal freedom (for both meanings of liberal). (shrink)

The claim of liberal constitutionalism is that a text-like object or a ‘diplomatically abstract’ set of principles can work a deflection of disagreements within a pluralist polity. But this project assumes both that pluralism remains amenable to reason and that reason is a capacity independent of the profound differences of meaning, value, and forms of life that shape those disagreements. Neither assumption is correct. Differences in norms, values, and forms of life inevitably undergird and structure differences in meaning, (...) perception, and interpretation. Consequently, a constitution (even when written and accompanied by judicial review) will necessarily unfold in an ongoing process of political cooperation and contestation. Legitimacy can arise only from the practice of democracy itself – that is, self-governance under conditions that realistically accord equal recognition and respect to all participants. Law is not some abstract entity or prior fixation, special and above. It is not, as Michelman once said, ‘an autonomous force’ that provides ‘an external untouchable rule of the game’. It is just another social institution or performative practice that does (or does not) reflect our democratic nomos. To be committed, as a strong democrat, to the rule of law is to be committed to the idea that we make the rules by which we govern ourselves. Equal voice, equal power, and equal law are just self-government. They are internal to – that is, constitutive of – the game. They are not untouchable; indeed, they are being manhandled every day. But they nevertheless describe a democratic constitution that fully legitimates itself in its performance. (shrink)

This book is best understood if one places it into the specific context of present-day debates about the shortcomings of American liberalism. With Alasdair MacIntyre and other communitarians on the one hand, and the "new constitutionalist right" on the other hand, mainstream liberalism in the United States reaching from Dewey to Rawls appears to be under pressure. Macedo does his best to salvage it without relying on support from left-wing communitarians or moderate defenders of social democracy such as Charles Taylor (...) or M. Walzer. The title "liberal virtues" is, after all, almost provocative; at least we begin to hear it that way, having become accustomed to separating virtue from liberalism and attributing an almost premodern meaning to the term virtue. Therefore Macedo puts much effort into a reconstruction of the historical ancestry of American liberalism and shows that liberalism was integral to the constitutional history of the United States. He takes his argument through a consideration of a number of relevant Supreme Court decisions, all the while clearly recognizing that republican and democratic virtues have sources other than those available through constitutional adjudication. What interests the author is the relation between the public virtues of reasonableness, tolerance, critical reflection as moral virtues and their legal counterparts. He thus makes a case for a liberal public morality or ethos, without which political liberalism or liberalism in constitutional law cannot overcome a "shortfall of legitimacy and moral justification". (shrink)

This review of Madhav Kkhosla’s book, India’s Founding Moment, sees his approach as one of “best lights” understandings, that is, an effort to identify and explain the conceptual underpinnings of India’s founding constitution in their best lights. Khosla emphasizes as key the ways in which the constitution’s requirements of full adult suffrage, its intense specificity of language, and its strongly centralized government form, all contribute conceptually to the creation of the democratic citizen of India—a citizen whose rights across the country (...) were secured by a common constitution and central government, whose knowledge of and ability to exercise rights were enhanced by the constitution’s codified approach, and a citizen whose capacities to participate in democratic processes would be developed by the exercise of democratic rights. The review focuses attention on choices about suffrage, comparing India’s with the less inclusionary founding impulses of the United States constitution. It explores nuances of how codification would and would not promote exercises of citizenship rights, noting the importance of adjudication in the construction of the “common knowledge” to which the founders aspired. And the review argues that today, as more illiberal, authoritarian regimes are on the rise, the book’s emphasis on the importance of ideas, words, and common knowledge in constructing liberal, democratic politics is of urgent contemporary importance. (shrink)

In this article, I critically evaluate the positions of Professors Jeremy Waldron and W.J. Waluchow on the right-based merits of entrenched constitutions and strong judicial review. I support Waluchow in arguing that (i) prohibitions on the constitutional entrenchment of rights and resultant prohibitions of strong judicial review may be only superficially fair or democratic, since fair procedure alone can neither eliminate pre-existing inequalities nor ultimately take the autonomy vital to self-governance seriously (whether individual or collective). Secondly, (ii) if deep dissensus (...) fails to exist on all substantive matters of rights, the constitutional entrenchment of rights combined with strong judicial review can indeed be achieved fairly. I then propose that (iii) the anti-constitutionalist concern about being governed by the ‘dead hand of the past’ is self-refuting, for the alternative is simply another constraint on autonomy. While this is largely consistent with Waluchow's position vis-à-vis Waldron's majoritarianism, I end by expressing serious concerns regarding whether the common law (and the ‘constitutional morality’ that Waluchow claims can be derived from it) can act as a sufficiently robust basis for the protection of liberal and egalitarian rights. (shrink)

Extensive urbanization is one of the most significant demographic and geopolitical phenomena of our time. Yet, with few exceptions, constitutional theory has failed to turn its attention to this crucial trend. In particular, the burgeoning constitutional literature aimed at addressing phenomena such as democratic backsliding, constitutional retrogression, and populist threats to judicial independence and the rule of law has failed to respond to the significance of place as an emerging cleavage in contemporary politics. An alarming disconnect has emerged between (...) class='Hi'>constitutionalism's overwhelmingly statist (or Westphalian) outlook and the reality of geographically localized concentration of worldviews, policy preferences, and political identities. In this essay, I identify urban agglomeration and the accompanying resurgence of the urban-rural divide as posing a critical challenge to liberal constitutional democracy, and argue that the time is ripe to pay closer attention to the spatial dimension of constitutional governance and its impact on the rise of anti-establishment political resentment. To that end, in the essay's final part I identify several areas of constitutional law and theory that appear to hold some intellectual promise in thinking creatively about mitigating the urban-rural divide, and about the mounting urban challenge more generally. (shrink)

One of the most problematic aspects of the ‘Harvard School’ of liberal international theory is its failure to fulfil its own methodological ideals. Although Harvard School liberals subscribe to a nomothetic model of explanation, in practice they employ their theories as heuristic resources. Given this practice, we should expect them neither to develop candidate causal generalizations nor to be value-neutral: their explanatory insights are underpinned by value-laden choices about which questions to address and what concepts to employ. A key (...) question for liberal theorists, therefore, is how a theory may be simultaneously explanatory and value-oriented. The difficulties inherent in resolving this problem are manifested in Ikenberry's writing: whilst his work on constitutionalism in international politics partially fulfils the requirements of a more satisfactory liberal explanatory theory, his recent attempts to develop prescriptions for US foreign policy reproduce, in a new form, key failings of Harvard School realism. (shrink)

Aboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession—at least so far—than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states. Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law. A general question informing the entire discussion here is: how do particular conceptions (...) of the rule of law affect Aboriginal claims? Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law? (shrink)