Constitutionalism and Democracy (The International Library of Essays in Law and Legal Theory (Second Series))

"Constitutionalism and democracy have been interpreted as both intimately related and intrinsically opposed. On the one hand constitutions are said to set out the rules of the democratic game, on the other as constraining the power of the demos and their representatives to rule themselves - including by reforming the very processes of democracy itself. Meanwhile, constitutionalists themselves differ on how far any constitution derives its authority from, and should itself be subject to democratic endorsement and interpretation. They also dispute whether constitutions should refer solely to democratic processes, or also define and limit democratic goals. Each of these positions produces a different view of judicial review, the content and advisability of a Bill of Rights and the nature of constitutional politics. These differences are not simply academic positions, but are reflected in the different types of constitutional democracy found in the United States, continental Europe, Britain and many commonwealth countries. The selected essays explore these issues from the perspectives of law, philosophy and political science. A detailed and informative introduction sets them in the context of contemporary debates about constitutionalism."--Provided by publisher Cover Half Title Title Page Copyright Page Contents Acknowledgements Series Preface Introduction PART I: CONSTITUTIONAL DEMOCRACY: SUBSTANTIVE VIEWS 1 Constitutionalism and Democracy 1. Introduction 2. Two Concepts of Collective Action 3. Does Constitutionalism Undermine Equality? 4. Moral Scepticism 5. Does Constitutionalism Deny Freedom? 6. Democracy and Mistakes NOTES 2 Equality, Democracy, and Constitution: We the People in Court I. THE PROBLEM ll. FAMILIAR RESPONSES III. CONCEPTIONS OF DEMOCRACY IV. EQUALITY OF POWER A. VERTICAL AND HORIZONTAL DIMENSIONS B. IMPACT AND INFLUENCE C. SHOULD INFLUENCE BE EQUAL? V. COMMUNAL COLLECTIVE ACTION VI. DEMOCRACY AS INTEGRATION A. THE PRINCIPLE OF PARTICIPATION B. THE PRINCIPLE OF STAKE C. THE PRINCIPLE OF INDEPENDENCE VII. COMMUNITY AND CONSTITUTION A. THE PLAIN PROVISIONS B. JUDICIAL INTERPRETATION 3 The Idea of Public Reason Revisited INTRODUCTION § 1: THE IDEA OF PUBLIC REASON § 2: THE CONTENT OF PUBLIC REASON § 3: RELIGION AND PUBLIC REASON IN DEMOCRACY § 4: THE WIDE VIEW OF PUBLIC POLITICAL CULTURE § 5: ON THE FAMILY AS PART OF THE BASIC STRUCTURE § 6: QUESTIONS ABOUT PUBLIC REASON § 7: CONCLUSION 4 A Right-Based Critique of Constitutional Rights 1 Introduction 2 Right-Based Theories 3 From Moral Rights to Legal Rights 4 From Legal Rights To Constitutional Rights 5 Doing Philosophy 6 Disagreement and Authority 7 Philosophical Debate and Political Participation 8 The Right to Participate 9 The Proceduralist Gambit 10 Imperfect Democracy 11 Democratic Self-Restraint 13 Conclusion 5 A Philosophical Argument for a Bill of Rights RIGHTS AGAINST THE STATE FROM MORAL RIGHTS TO CONSTITUTIONAL RIGHTS OBJECTIONS AGAINST BILLS OF RIGHTS A Right-Based Objection Against Constitutional Rights Democracy-Based Objections Against Constitutional Rights CONCLUSION 6 Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker I II III IV V VI PART II: CONSTITUTING DEMOCRACY: PROCEDURAL VIEWS 7 Toward a Representation-Reinforcing Mode of Judicial Review The Carolene Products Footnote Representative Democracy The Nature of the United States Constitution Democracy and Distrust 8 Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory I. The Critique of the Prevailing Theories A. Burkean Theories B. Natural Law Theories II. A Critique of Ely's Theory A. The Basis of the Theory B. The Problem of Jurisdiction C. The Problem of Definition D. The Problem of Political Reality III. The Future of Constitutional Theory A. The Standard Version of Constitutional Theory B. The Revised Standard Version of Constitutional Theory C. The Contradictions of Constitutional Theory 9 The Puzzling Persistence of Process-Based Constitutional Theories I. The Constitution's Openly Substantive Commitments II. The Substantive Roots of Procedural Norms III. The Quandary of Whom to Protect IV. The Closed Circle of Political Openness V. A Broader Role for Constitutional Theory PART III: CONSTITUTIONALIST DEMOCRACY: RECONCILING SUBSTANCE AND PROCEDURES 10 What was Wrong with Dred Scott, What's Right about Brown I. II. III. 11 On the Internal Relation between the Rule of Law and Democracy 1. Formal Properties of Modem Law 2. The Complementary Relation between Positive Law and Autonomous Morality 3. The Mediation of Popular Sovereignty and Human Rights 4. The Relation between Private and Public Autonomy 5. The Example of the Feminist Politics of Equality 12 Three Normative Models of Democracy (1) The Two Received Views of Democratic Politics (2) Proceduralist vs. Communitarian Views of Politics (3) Three Images of State and Society 13 Democracy and Positive Liberty I. II. III. IV. V. VI. PART IV: CONSTITUTIVE DEMOCRACY: POPULIST CONSTITUTIONALISM 14 The Storrs Lectures: Discovering the Constitution LECTURE ONE: THE ECONOMY OF VIRTUE A. Founding Fathers and Rebel Children B. Constitution and Revolution 1. We the People? 2. The Problematics of Successful Revolution 3. The Federalist Solution C. Federalist Political Science 1. The Problem 2. The Scientific Solution 3. Master Concept: The Problematics of Representation LECTURE TWO: WE THE PEOPLE? A. From Successful Revolutionary to Private Citizen B. The Dilemmas of Private Citizenship C. Coercive Democracy D. Levelling Democracy 1. The Leveller's Contribution to Liberal Democracy 2. Levelling and Its Inadequacies E. The Promise of Dualist Democracy F. What Does the Constitution Constitute? LECTURE THREE: THE PEOPLE AND THE COURT A. From Private Citizen to Constitutional Lawyer B. The Intertemporal Difficulty C. A Dualist Defense of judicial Review D. The Structural Amendment E. Text, History, Structure F. The Possibility of Interpretation 15 Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution I. THE AMBIVALENT RELATIONS BETWEEN REVOLUTION AND CONSTITUTION II. CONSTITUENT POWER OF THE PEOPLE, THE CONCEPT OF NATION AND THE CONSTITUTION A. Who Constitutes the Nation-the Demos or the Ethnos? B. The French Concept: Equal Citizenship as the Ground of the Nation C. The Predominantly Ethnicist Notion of the People in Eastern Europe D. Carl Schmitt's Ethnicist Concept of Democracy Ill. THE FOUNDATION OF THE POLITY: COLLECTIVE IDENTITY OR THE CONSTITUTION? A. The Relation Between the Constituent Power and the Constituted Powers B. The Basis of Society: Blood or Contract? CONCLUSION 16 The Normality of Constitutional Politics: An Analysis of the Drafting of the EU Charter of Fundamental Rights 1. Rights and the Circumstances of Politics 2. The Politics of Compromise 3. Compromising on Rights: An Analysis of the Charter Convention Conclusion NOTES PART V: CONSTITUTIONAL DEMOCRACY: BEYOND THE NATION-STATE 17 The Unfreedom of the Moderns in Comparison to their Ideals of Constitutional Democracy Three illegitimate trends in the light of the principle of democracy The critical discussion of the two principles in light of the three trends The third response: a critical and practical approach Conclusion 18 Economic Globalization and the Rule of Law I. Law in a Global Age II. Towards a Global State of Exception? 1. International Arbitration and the Lex Mercatoria 2. Multinational Corporations and Business Taxation 3. International Finance and Banking 4. The General Agreement on Tariffs and Trade (GATT) III. Legal Security and the Compression of Space and Time IV. Social Democracy and the Fate of Law NOTES 19 Republican Cosmopolitanism I. GLOBALIZATION, FREEDOM AND INTERDEPENDENCE A. DOMINATION AND THE NEW CIRCUMSTANCES OF POLITICS B. NONDOMINATION AS A PRIMARY POLITICAL GOOD II. TYRANNY, CRIMES AGAINST HUMANITY AND THE COSMOPOLITAN POLITICAL COMMUNITY A. A REPUBLICAN RULE OF LAW B. POLITICAL OBLIGATIONS TO HUMANITY III. DOMINATION, ACCOUNTABILITY AND DEMOCRACY A. SOCIAL INQUIRY IN TRANSNATIONAL INSTITUTIONS B. SOME REPUBLICAN OBJECTIONS IV. HUMAN RIGHTS AS POLITICAL RIGHTS, POLITICAL RIGHTS AS HUMAN RIGHTS 20 Does Europe Need a Constitution? Introduction I Expectations of a Constitution II. Constitutional Position A Concept and Function of a Constitution B Constitutional Nature of the Treaties C Conditions for European Democracy III Constitutional illusions Bibliography 21 Remarks on Dieter Grimm's "Does Europe Need a Constitution? The Diagnosis Political Conclusion The Discussion 22 Why Europe Needs a Constitution An ever-closer union? Beyond a 'mere market' Globalization and social solidarity Normative appeals Positive coordination Civic nations A catalytic constitution Creating a public sphere Sharing a political culture Designing a framework The politics of unification 23 In Defence of the Status Quo: Europe's Constitutional Sonderweg Introduction: Europe's fateful choice Authority, submission and emancipation: a parable Neither Kelsen nor Schmitt: the principle of European constitutional tolerance- concept and praxis 24 Sovereignty, Post-Sovereignty and Pre-Sovereignty: Three Models of the State, Democracy and Rights within the EU 1. INTRODUCTION 2. POLITICAL AND LEGAL SOVEREIGNTY 3. FROM SOVEREIGNTY TO POST-SOVEREIGNTY 4. FROM PRE-SOVEREIGNTY TO MIXED SOVEREIGNTY 5. CONCLUSION Name Index

constitutionalism And Democracy Have Been Interpreted As Both Intimately Related And Intrinsically Opposed. On The One Hand Constitutions Are Said To Set Out The Rules Of The Democratic Game, On The Other As Constraining The Power Of The Demos And Their Representatives To Rule Themselves—including By Reforming The Very Processes Of Democracy Itself. Meanwhile, Constitutionalists Themselves Differ On How Far Any Constitution Derives Its Authority From, And Should Itself Be Subject To Democratic Endorsement And Interpretation. They Also Dispute Whether Constitutions Should Refer Solely To Democratic Processes, Or Also Define And Limit Democratic Goals.

each Of These Positions Produces A Different View Of Judicial Review, The Content And Advisability Of A Bill Of Rights And The Nature Of Constitutional Politics. These Differences Are Not Simply Academic Positions, But Are Reflected In The Different Types Of Constitutional Democracy Found In The United States, Continental Europe, Britain And Many Commonwealth Countries. The Selected Essays Explore These Issues From The Perspectives Of Law, Philosophy And Political Science. A Detailed And Informative Introduction Sets Them In The Context Of Contemporary Debates About Constitutionalism.