DOCSLIB.ORG

Constitutionalism Gerhard Casper

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Constitutionalism Gerhard Casper University of Chicago Law School Chicago Unbound Occasional Papers Law School Publications 1987 Constitutionalism Gerhard Casper Follow this and additional works at: http://chicagounbound.uchicago.edu/occasional_papers Part of the Law Commons Recommended Citation Gerhard Casper, "Constitutionalism," University of Chicago Law Occasional Paper, No. 22 (1987). This Working Paper is brought to you for free and open access by the Law School Publications at Chicago Unbound. It has been accepted for inclusion in Occasional Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Occasional Papers from The Law School The University of Chicago Number 22 Constitutionalism Gerhard Casper Copies of Occasional Papers from the Law School are available from William S. Hein & Company, Inc., 1285 Main Street, Buffalo, New York 14209, to whom inquiries should be addressed. Current num- bers are also available on subscription from William S. Hein & Company, Inc. 2 Constitutionalism Gerhard Casper* Constitutionalism is a term not altogether congenial to American lawyers. It seems to share the character- istics of other "isms": it is neither clearly prescrip- tive nor clearly descriptive; its contours are difficult to discern; its historical roots are diverse and uncer- tain. Legal realist Walton H. Hamilton, who wrote on the subject for the Encyclopedia of the Social Sci- ences, began his article in an ironic vein: "Constitu- tionalism is the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order." Historians, on the other hand, employ the concept with some confidence in its meaning. American his- torians tend to use it as a shorthand reference to the constitutional thought of the founding period. Euro- pean historians have a somewhat harder time. Given a largely unwritten constitution and the sovereignty of Parliament, what does it mean to refer to British constitutionalism? What is the significance of Dicey's distinction between the "conventions of the constitution" and the "law of the constitution"? How meaningful is the distinction? As Dicey noted: "Whatever may be the advantages of a so-called un- written constitution, its existence imposes special difficulties on teachers bound to expound its provi- sions." French authors view constitutionalism as an important element of the French Revolution, but run into difficulties as they contemplate the fact that, since the constitution of 1791, France has had fifteen of them-and by no means all democratic. German historians tend to restrict the use of the term Kon- stitutionalismus to the Central European constitu- tional monarchies of the nineteenth century, though German-language equivalents for constitutionalism (Verfassungsstaat, Verfassungsbegriff)are frequently encountered in the literature. The German constitu- tionalist trauma is, of course, the ease with which the Weimar constitution, in its time viewed as one of the most progressive in the world, could be brought to *William B. Graham Professor of Law and Dean of the Univer- sity of Chicago Law School. This essay was first published in The Encyclopedia of the American Constitution. Leonard W. Levy, editor-in-chief, and Kenneth L. Karst, associate editor. Volume 2, pp. 473-80. Copyright9l986 by Macmillan Publishing Company, a division of Macmillan, Inc. Reproduced by permission of the publisher. 3 collapse at the hands of determined enemies who then managed to organize arbitrariness in the form of law. Constitutionalism has both descriptive and pre- scriptive connotations. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to "consent" and certain other rights, freedoms, and privileges. This struggle extends roughly from the seventeenth centu- ry to the present day. Its beginnings coincide with the "enlightenment" of the seventeenth and eighteenth. centuries. Used prescriptively, especially in the Unit- ed States, its meaning incorporates those features of government seen as the essential elements of the American Constitution. Thus, F. A. Hayek called constitutionalism the American contribution to the rule of law. Constitutionalism obviously presupposes the con- cept of a constitution. A Swiss authority of some influence in the American revolution, Emerich de Vattel, in his famous 1758 treatise, The Law of Nations or the Principlesof Natural Law, provided a definition: "The fundamental law which determines the manner in which the public authority is to be ex- ercised is what forms the constitution of the State. In it can be seen the organization by means of which the Nation acts as a political body; how and by whom the people are to be governed; and what are the rights and duties of those who govern. This constitution is nothing else at bottom than the establishment of the system, according to which a Nation proposed to work in common to obtain the advantages for which a political society is formed." This rather neutral definition has to be read against the background of Vattel's theory of natural law. Vattel recognized the right of the majority to reform its government and, most important, excluded funda- mental laws from the reach of legislators, "unless they are expressly empowered by the nation to change them." Moreover, Vattel believed that the ends of civil society were "to procure for its citizens the ne- cessities, the comforts, and the pleasures of life, and in general their happiness; to secure to each the peaceful enjoyment of his property and a sure means of obtaining justice; and finally to defend the whole body against all external violence." Later in the eighteenth century strong prescriptive elements became part of the very definition of a con- stitution. Two examples are equally famous. On Oc- tober 21, 1776, the town of Concord, Massachusetts, 4 resolved "that a Constitution in its Proper Idea in- tends a System of Principles Established to Secure the Subject in the Possession and enjoyment of their Rights and Privileges against any Encroachment of the Governing Part." Article 16 of the French Decla- ration of the Rights of Man of 1789 put it even more bluntly: "A society in which the guarantee of rights is not assured nor the separation of powers provided for, has no constitution." Although it would be impractical to make such substantive features a necessary part of one's defini- tion of a written or unwritten constitution, a proper understanding of constitutionalism as a historical phenomenon depends on them. Constitutionalism does not refer simply to having a constitution but to having a particular kind of constitution, however dif- ficult it may be to specify its content. This assertion holds true even in the case of the interplay of old forces (monarchies and estates) with new forces (the middle class in particular) which characterized the emergence of constitutional monarchies in Central Europe during the nineteenth century. Seen from a constitutionalist perspective, many of the German constitutional monarchies were influenced by con- cepts that had much in common with constitutionalist thought. The most important of these concepts was the Rechtsstaat: a state based on "reason" and a strict regulation of government by law. The concepts of a constitution and of fundamental laws have not had a constant meaning over time. Since the eighteenth century (though not before), it has become customary to translate Aristotle's word politeia as "constitution": "A constitution is the ar- rangement of the offices in a polis, but especially of the highest office." This definition precedes Aristo- tle's differentiation among six forms of government- those for the common good (monarchy, aristocracy, and "polity") and their perversions, which serve in- dividual interests (tyranny, oligarchy, and democra- cy). Aristotle thus introduced substantive, not merely formal, criteria into his teachings about constitution- al arrangements. Cicero is usually credited with first giving the Lat- in term constitutio something like its modern mean- ing. About a mixed form of government, he said in De Re Publica: "This constitution has a great mea- sure of equability without which men can hardly re- main free for any length of time." Indeed, Roman law was characterized by constitutional notions. The constitution of the Roman republic, putting other 5 substantive arrangements aside, was marked by the power of the plebs to pass on laws which bound the entire Roman people. While this republican preroga- tive of the plebs was later replaced by Senate law- making and eventually by the emperor's legislative monopoly, its status is perhaps best illustrated by Augustus's repeated refusal, on "constitutional" grounds, to accept extraordinary powers to renew law and morals. Though this Augustan reticence may have been a triumph of form over substance, "tri- umphs" of this kind have frequently illustrated how constitutional notions have become deeply entrenched. In subsequent Roman usage the term constitutio came to identify imperial legislation that preempted all other law. The understanding of constitutio as sig- nifying important legislation was retained during the Middle Ages in the Holy Roman Empire, in the church, and throughout Europe. A well-known Eng- lish example is the Constitution of Clarendon issued by Henry II in 1164. In England, the modern use of constitution as re- ferring to the nature, government, and fundamental laws of a state dates from the early seventeenth cen- tury. In the House of Commons, in 1610, James Whitelock argued that the imposition of taxes by James I was "against the natural frame and constitu- tion of the policy of this kingdom, which is ius pub- licum regni, and so subverteth the fundamental law of the realm and induceth a new form of State and government." In Europe, perceptions that some laws were more fundamental than others were well established before the eighteenth century. Magna Carta (1215), the Peti- tion of Right (1628), and the Habeas Corpus Act (1679) are the best known English illustrations of this point.
Load more

Recommended publications
  • Freedom Or Theocracy?: Constitutionalism in Afghanistan and Iraq Hannibal Travis
    Northwestern Journal of International Human Rights Volume 3 | Issue 1 Article 4 Spring 2005 Freedom or Theocracy?: Constitutionalism in Afghanistan and Iraq Hannibal Travis Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njihr Recommended Citation Hannibal Travis, Freedom or Theocracy?: Constitutionalism in Afghanistan and Iraq, 3 Nw. J. Int'l Hum. Rts. 1 (2005). http://scholarlycommons.law.northwestern.edu/njihr/vol3/iss1/4 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Human Rights by an authorized administrator of Northwestern University School of Law Scholarly Commons. Copyright 2005 Northwestern University School of Law Volume 3 (Spring 2005) Northwestern University Journal of International Human Rights FREEDOM OR THEOCRACY?: CONSTITUTIONALISM IN AFGHANISTAN AND IRAQ By Hannibal Travis* “Afghans are victims of the games superpowers once played: their war was once our war, and collectively we bear responsibility.”1 “In the approved version of the [Afghan] constitution, Article 3 was amended to read, ‘In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam.’ … This very significant clause basically gives the official and nonofficial religious leaders in Afghanistan sway over every action that they might deem contrary to their beliefs, which by extension and within the Afghan cultural context, could be regarded as
    [Show full text]
  • The Age of Absolutism and Constitutionalism in Europe: AP World History
    The Age of Absolutism and Constitutionalism in Europe: AP World History: Overview: ∙ Karl Marx noted that all history is cyclical and a response to a previous period, this dialectical notion teaches us to examine patterns and trends with the purpose of predicting future events. According to Marxist thought history responds logically and materially to the flaws of the previous period. Using our knowledgebase of the previous section…it is clear that the previous age faced great challenges that led to new trends in the following era, trends that included Absolutism and the liberal response; constitutionalism. In dealing with the political, religious, economic, and climatic problems of the day the leaders of state sought more power to deal with problems. The response was a new political philosophy that had been in the works for a millennium; Absolutism. Absolutism gives a monarch absolute or total authority in dealing with the state. This power is absorbed by the Monarch and takes liberties away from elected representatives and citizens. The response (dialectally) is constitutionalism, a system that seeks to enumerate the rights of citizens by limiting the rights and powers of the State. ∙ These political ideas will manifest themselves in several locations; France, Russia, Austria, and Prussia. France: The Model of Absolute Monarchy ∙ The French Monarchy had been in a constant state of evolution since the fall of Rome. Great monarchs had appeared, ideas solidified during the Renaissance, and conflict during the age of religious wars. Henry IV revived the monarchy and laid the framework for the reign of the Great Monarch Louis XIV.
    [Show full text]
  • The Evolution and Ideology of Global Constitutionalism
    California Law Review VOL. 99 OCTOBER 2011 No. 5 Copyright @2011 by California Law Review, Inc., a California Nonprofit Corporation The Evolution and Ideology of Global Constitutionalism David S. Law* & Mila Versteeg** It has become almost universal practice for countries to adopt formal constitutions. Little is known empirically, however, about the evolution of this practice on a global scale. Are constitutions unique and defining statements of national aspiration and identity? Or are they standardized documents that vary only at the margins, in predictable and patterned ways? Are constitutions becoming increasinglysimilar or dissimilarover time, or is there no discernible overall pattern to their development? Until very recently, scholars have lacked even basic empirical data on the content of the world's Copyright C 2011, David S. Law & Mila Versteeg. * Professor of Law and Professor of Political Science, Washington University in St. Louis; Visiting Scholar, New York University School of Law; Visiting Professor and Fulbright Scholar, National Taiwan University College of Law. B.A., M.A., Ph.D., Stanford University; J.D., Harvard Law School; B.C.L. in European and Comparative Law, University of Oxford. ** Associate Professor, University of Virginia School of Law. B.A., LL.M., Tilburg University; LL.M., Harvard Law School; D.Phil., University of Oxford. Earlier versions of this Article were presented at the 2010 annual meetings of the Law and Society Association in Chicago and the American Political Science Association in Washington, D.C., the Fifth Annual Conference on Empirical Legal Studies held at Yale Law School, and faculty colloquia at Brooklyn Law School and Washington University School of Law.
    [Show full text]
  • Introduction: Global Constitutionalism from an Interdisciplinary Perspective
    Indiana Journal of Global Legal Studies Volume 16 Issue 2 Article 1 Summer 2009 Introduction: Global Constitutionalism from an Interdisciplinary Perspective Anne Peters University of Basel Klaus Armingeon University of Berne Follow this and additional works at: https://www.repository.law.indiana.edu/ijgls Part of the Constitutional Law Commons, and the International Law Commons Recommended Citation Peters, Anne and Armingeon, Klaus (2009) "Introduction: Global Constitutionalism from an Interdisciplinary Perspective," Indiana Journal of Global Legal Studies: Vol. 16 : Iss. 2 , Article 1. Available at: https://www.repository.law.indiana.edu/ijgls/vol16/iss2/1 This Symposium is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Journal of Global Legal Studies by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Introduction-Global Constitutionalism from an Interdisciplinary Perspective ANNE PETERS* & KLAUS ARMINGEON** This issue discusses the process and substance of global constitutionalism from an interdisciplinary perspective.' The contributions look at international law and governance through constitutionalist spectacles. These spectacles have normative and empirical-analytical lenses. Seen through the normative lens of lawyers, a con- stitutionalist reading of current international law is, to some extent, an academic artifact. It has a creative moment, even if it only emphasizes certain characteristics of international law. From a legal perspective, such an intellectual construct is nothing unusual. If we accept the hermeneutic premise that a naked meaning of a text, inde- pendent of the reader, does not exist, then the reconstruction of some portions of international law as international constitutional law is just an ordinary hermeneutic exercise.
    [Show full text]
  • Western and Non-Western Legal Cultures and the International Court of Justice
    Washington University Law Review Volume 65 Issue 4 Festschrift: A Celebration of the Scholarship and Teaching of Gray L. Dorsey January 1987 Western and Non-Western Legal Cultures and the International Court of Justice Edward McWhinney Simon Fraser University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the International Law Commons Recommended Citation Edward McWhinney, Western and Non-Western Legal Cultures and the International Court of Justice, 65 WASH. U. L. Q. 873 (1987). Available at: https://openscholarship.wustl.edu/law_lawreview/vol65/iss4/18 This Dedication is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Professor McWhinney, like Professor Dorsey, was a student of ES.C. Northrop at Yale Law School in the years immediately following World War II. Professor Northrop believed that the method of dispute settlement embodied in the Statute of the InternationalCourt of Justice is a product of Western European culture and that this method is alien to the cultures of many peoples. Accordingly, Professor Mc Whinney finds, many coun- tries originallyshunned the InternationalCourt of Justice. Recently, how- ever, Third World states, Communist states, and Japan have set aside their cultural differences and appealed to the Court in
    [Show full text]
  • Liberal Constitutionalism: Re-Thinking the Relationship Between Justice and Democracy
    Liberal Constitutionalism: Re-thinking the Relationship between Justice and Democracy Harald Borgebund PhD The University of York Department of Politics February, 2010 Abstract Liberal constitutionalism is a dominant approach to contemporary political and democratic theory. A defining feature of liberal constitutionalism as it has been outlined by some of its proponents (Rawls: 1996, 1999a and Barry: 1995) is a commitment both to pre-political standards of justice and to the claim that democracy expresses the sovereignty of the people. Combining pre-political rights with the sovereignty of the people seems contradictory. The difficulty is how the people can be fully sovereign if they are constrained by rights outside the reach of popular sovereignty. Because both justice and democracy are foundational to liberal constitutionalism, this contradiction threatens to undermine the plausibility of the entire theory. If liberal constitutionalism fails, this calls for a re-thinking of how to conceptualize the relationship between justice and democracy in contemporary liberal thought. This thesis asks: how can liberal constitutionalists sustain their double commitment to justice and democracy? To answer this question I address three central questions for liberal constitutionalists concerning democracy. First, what is the role of reason in their theories; second, what type of democracy are they committed to; third, I question the role of civil and political rights in democracy. On the first question, I argue that a weak notion of public reason will serve liberal constitutionalism best. Furthermore, liberal constitutionalism fits best with a model of democracy emphasising deliberation combined with a weak notion of the common good. Finally, some of the underlying thinking behind both civil and political rights and democracy is derived from the same sources, which reduces the conflict between justice and democracy.
    [Show full text]
  • Catholic Constitutionalism from the Americanist Controversy to Dignitatis Humanae Anna Su University of Toronto Faculty of Law
    Notre Dame Law Review Volume 91 | Issue 4 Article 7 6-2016 Catholic Constitutionalism from the Americanist Controversy to Dignitatis Humanae Anna Su University of Toronto Faculty of Law Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Catholic Studies Commons, Constitutional Law Commons, First Amendment Commons, and the Religious Thought, Theology and Philosophy of Religion Commons Recommended Citation 91 Notre Dame L. Rev. 1445 (2016) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\91-4\NDL407.txt unknown Seq: 1 16-MAY-16 14:35 CATHOLIC CONSTITUTIONALISM FROM THE AMERICANIST CONTROVERSY TO DIGNITATIS HUMANAE Anna Su* ABSTRACT This Article, written for a symposium on the fiftieth anniversary of Dignitatis Humanae, or the Roman Catholic Church’s Declaration on Religious Freedom, traces a brief history of Catholic constitutionalism from the Americanist controversy of the late nineteenth century up until the issuance of Dignitatis Humanae as part of the Second Vatican Council in 1965. It argues that the pluralist experiment enshrined in the First Amendment of the U.S. Constitution was a crucial factor in shaping Church attitudes towards religious freedom, not only in the years immediately preceding the revolutionary Second Vatican Council but ever since the late nineteenth century, when Catholicism became a potent social force in the United States. This history offers an oppor- tunity to reflect on what the new global geography of Catholicism portends in the future.
    [Show full text]
  • Dilemmas of Liberal Constitutionalism
    The Dilemmas of Liberal Constitutionalism MARK TUSHNET* I. THE DILEMMAS OF GRAND THEORY I suppose that we could treat the recent appearance of works by Professors Ely' and Choper as an example of the happy phenomenon, widely noted in the history of science,3 of the simultaneous discovery,4 and then go on to discuss the merits of their discovery. But that would obscure some quite interesting aspects of their work. First, their analyses are not, strictly speak- ing, discoveries, but rather are rediscoveries. John Marshall justified judicial review by referring to inadequacies in the political process in McCulloch v. Maryland,5 as Professor Ely notes, 6 and justified restrictions on review when the political process was adequate in Gibbons v. Ogden.7 A century later Harlan Stone made the same points, not only in the Carolene Products foot- note so important to Professor Ely,8 but also in South CarolinaState Highway Department v. Barnwell Brothers9 and in dissent in United States v. Butler.'o That is enough to show that we are not dealing with the rediscovery of some- thing propounded first by an obscure Bohemian monk," and to suggest that the intellectual historian may have as much to say about the Ely-Choper approach as the constitutional scholar does. Second, Professors Ely and Choper are only two members in a general revival of "Grand Theory" in constitutional law, in which Professors Tribe 2 and Perry, 13 among others, also take part. The last Grand Theorizing era can be dated from Herbert Wechsler's Holmes Lectures 4 and Alexander Bickel's early work, 5 but that * Professor of Law, University of Wisconsin.
    [Show full text]
  • Post-Liberal Constitutionalism
    CORE Metadata, citation and similar papers at core.ac.uk Provided by University of Tulsa College of Law Tulsa Law Review Volume 54 Issue 1 Article 4 Fall 2018 Post-Liberal Constitutionalism Jorge M. Farinacci-Fernós Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Jorge M. Farinacci-Fernós, Post-Liberal Constitutionalism, 54 Tulsa L. Rev. 1 (2018). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol54/iss1/4 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Farinacci-Fernós: Post-Liberal Constitutionalism FARINACCI-FINAL (DO NOT DELETE) 9/14/2018 2:19 PM POST-LIBERAL CONSTITUTIONALISM* Jorge M. Farinacci-Fernós** I. INTRODUCTION ................................................................................................................ 2 II. SPLITTING THE CONSTITUTIONAL ATOM: A CRITICAL VIEW OF MODERN CONSTITUTIONALISM ............................................................................................. 3 A. Introduction ....................................................................................................... 3 B. A General View of Constitutionalism ............................................................... 4 1. Definitions and Uses .................................................................................. 4 2. Birth
    [Show full text]
  • An Essay on Christian Constitutionalism: Building in the Divine Style, for the Common Good(S)
    478 RUTGERS JOURNAL OF LAW & RELIGION [Vol. 16 AN ESSAY ON CHRISTIAN CONSTITUTIONALISM: BUILDING IN THE DIVINE STYLE, FOR THE COMMON GOOD(S) Patrick McKinley Brennan1 “The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.” -- Edwin S. Corwin2 I. INTRODUCTION: CONTROLLING THE STATE OF MANKIND BY LAW An answer is always and only to a question (the alternative is called a non sequitur), and the question I have been asked to answer is exactly this: “What would a Christian constitution, in a predominantly Christian nation, look like?” My answer can be summarized as follows: the fundamental laws, institutions, and practices that would have as their aim to constitute—and to sustain—that particular people as a Christian commonwealth. Contained in this telegraphic summary is a rejection of the possibility that an inquiry into a “Christian constitution” can be limited to a constitution in the “thick” sense.3 Also contained in it is an assertion that there is a necessary connection between a Christian constitution and commonwealth, where commonwealth is opposed to “state” in the usual, modern sense of the latter term. This inquiry into Christian constitutionalism, then, is an inquiry into the necessary and sufficient conditions of constituting a particular people as a Christian commonwealth.4 1 I am grateful to the editors of the Rutgers Journal of Law and Religion for the invitation to contribute to the Seventh Annual Donald C. Clark, Jr., 2 EDWIN S. CORWIN, THE “HIGHER LAW” BACKGROUND OF AMERICAN CONSTITUTIONAL LAW 1 (1955).
    [Show full text]
  • The Original Theory of Constitutionalism
    D AVID SINGH GREWAL & JEDEDIAH PURDY The Original Theory of Constitutionalism The Sleeping Sovereign: The Invention of Modern Democracy BY RICHARD TUCK CAMBRIDGE UNIVERSITY PRESS, 2016 authors. Professor of Law, Yale University, and Robinson O. Everett Professor of Law, Duke University. The authors wish to thank Bruce Ackerman, Akhil Amar, Jack Balkin, Daniela Cammack, Sandipto Dasgupta, Stefan Eich, Daniel Herz-Roiphe, Jeremy Kessler, Madhav Khosla, Michael Klarman, Sanford Levinson, Pratap Bhanu Mehta, Lev Menand, Bernadette Meyler, Sam- uel Moyn, Isaac Nakhimovsky, Robert Post, David Pozen, Aziz Rana, Jed Rubenfeld, Stephen Sachs, Melissa Schwartzberg, Neil Siegel, Reva Siegel, Lawrence Solum, Mark Somos, Richard Tuck, and the editors of the Yale Law Journal for helpful comments and criticisms. All errors remain the authors’. 664 the original theory of constitutionalism book review contents introduction: constitutionalism and democratic authority 666 i. the political theory of modern constitutionalism 669 A. Premodern Politics 671 B. Thomas Hobbes 673 C. Jean-Jacques Rousseau 675 D. The Revolutionary Generation 677 ii. the constitutional paradox 681 A. Popular Authorship and Present Consent 683 B. Univocal Sovereignty 686 C. Multitudinous Constitutionalism 688 iii. living with article v 691 A. The Curious Twinning of Originalism and Living Constitutionalism 692 B. Governmental Sovereignty 696 C. Democracy Without Sovereignty 698 1. Putting Governmental Democracy First 699 2. An Objection: Does Sovereignty Matter Today? 701 D. Refining Judicial Reason 702 conclusion 704 665 the yale law journal 127:664 2018 introduction: constitutionalism and democratic authority The conflict between various versions of “originalism” and “living constitu- tionalism” has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating.
    [Show full text]
  • Constitutionalism in the Post-Cold War World
    Symposium Constitutionalism in the Post-Cold War World As we approach the twenty-first century, the world is undergoing rapid and wide-ranging legal and political changes. The Cold War has ended. New democratic institutions are being introduced in the former Soviet Bloc and many parts of Africa and Latin America. Europe is moving toward unifica- tion. There is a growing prospect of a general reform of the United Nations. Law, especially constitutional law, is playing a large and vital role in these events. These changes and challenges provided the backdrop for this Symposium, held at Yale Law School on March 27-28, 1993. The Property Rights Panel considered the role of property rights in the nascent democracies of Eastern Europe and in the constitutional scheme of states in general. The Federalism Panel reviewed Alice Rivlin's book Reviving the American Dream and discussed how the experience of federalism in Germany and Canada can inform our assessment of the book's plan for strengthening federalism in the United States (and possibly elsewhere). The Judiciary Panel examined the institutional role of courts during transitional periods, focusing in particular on the constitutional courts that have recently emerged in Eastern Europe and the former Soviet Union. The Human Rights Panel discussed the extent to which constitutions should contain uniform norms, such as those of the Universal Declaration of Human Rights. The remarks that follow were selected for publication by the Editorial Board of The Yale Journal of InternationalLaw. The Editorial Board thanks all of the participants for making the Symposium a success. Symposium Participants Introductory Remarks W.
    [Show full text]