Reconciling Constitutionalism with Power: Towards a Constitutional Nomos of Political Ordering

Drawing upon Hannah Arendt's and Carl Schmitt's theories on the relationship between nomos and boundary, this paper revisits how constitutionalism and political power are reconciled as constitutional ordering. It first analyzes constitutionalism in the light of political modernity. Indicating that political power grounded by constitutions is omnipotent, complementing and completing constitutionalism, the paper contends that an omnipotent constitutional ordering is anything but an unleashed Leviathan. It is argued that constitutional omnipotence is framed and thus constrained by a constitutional nomos, the matrix of which is a dual delimitation of boundaries, generational, and jurisdictional.     

Plurinational democracies in Europe: the quest for a profane constitutionalism

How should we understand the claims on the right to decide on status made within plurinational member states of the European Union by actors and institutions seeking to protect the self-government of sub-state nations or peoples, or at least their right to consent to their ascribed status? Peaceful solutions to conflicts involving contested claims over territory, citizenship, and national sovereignty (authority) can be found when a conceptual or cultural transformation takes place towards a pluralist and bottom-up or federal concept of plurinational democracy, recovering the centrality of self-determination as the self-assertion of a political community. Constitutional law based on the popular sovereignty of a majority nation within plurinational democracies often neglects the question of the definition of the demos as the prefigured constituency, and the existence of national or territorial minorities. If constitutions are interpreted as precluding any claim to self-determination by a constituency, and any debate about that claim, then an undemocratic, sacralized model of militant constitutionalism may emerge. That model is not so much about protecting democracy as it is about imposing a national mould, a pre-defined demos. This article revisits the claims of sovereignty made by national territorial minorities in Spain, against the background of the constitutional doctrine of the Spanish judiciary that precludes these constituencies from engaging in political debates on the right to decide. The resulting sacralization of the Constitution leads to a new version of the model of ‘militant democracy’, a militant nationalist constitutionalism, which can be countered by an alternative, secular, even profane approach to the Constitution.     

The People Against Themselves: Rethinking Popular Constitutionalism

Ackerman, Bruce. 2014 . The Civil Rights Revolution . Cambridge, MA: Belknap Press of Harvard University Press. Shugerman, Jed Handelsman. 2012 . The People's Courts: Pursuing Judicial Independence in America . Cambridge, MA: Harvard University Press. In the course of reviewing Jed Shugerman's The People's Courts: Pursuing Judicial Independence in America and Bruce Ackerman's The Civil Rights Revolution, we argue for a reassessment of the way that scholars think about popular constitutionalism. In particular, we urge scholars to resist the tendency to create a dichotomy between judicial interpretation of law and a set of nonjudicial venues in which popular constitutionalism supposedly takes place. Popular constitutionalism is temporally and contextually bound, reflected in different forms and forums at different times in US political history and always dependent on the interactions between these institutions. By implication, this suggest that judges, rather than serving as obstacles to popular understandings of law, can and have used various forms of democratic authorization to strike down legislation violating both state and federal constitutions, thus bridging judicial review and popular constitutionalism with explicit support from the citizenry.     

Constitutional Directives: Morally‐Committed Political Constitutionalism

About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.     

Beyond Constitutionalism: The Search for a European Political Imagination

Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ‘new’ Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ‘universal’ jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ‘new’ Europe; just as, indeed, it was for the ‘old’ Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ‘beyond’ sovereignty, or even beyond democracy, but beyond constitutionalism.     

The Constitution-Making Process in Poland*

The process of constitution making in Poland since 1989, and the content of the two draft constitutions prepared separately by the Sejm and the Senate are described in this paper. The relatively weak sense of constitutionalism in Poland's tradition is commented on and compared with the role of judicial review by the courts and constitutional tribunals in the United States and Europe. The latter part of the article discusses the role of the Church, the civil society, the unions and voluntary associations in constitution making and in the post-Communist society in general.     

论欧盟宪法危机认知之理论方法

如何看待所谓的欧盟宪法危机,在很大程度上是一种理论分析形态选择的问题。分析欧盟这一政治体系或者政治体的各种理论,其共同之处在于解释欧盟现象因何而生又如何发展的问题。欧盟宪政的发展过程实际上就是欧盟法律人格丰富与健全的过程。分析欧盟法律人格的构成因素以及各个因素之间的逻辑联系,既能解释欧盟宪政的历史演进,又能分析目前欧盟宪法危机的症结所在。欧盟法律人格构成因素的丰富与强健,既是欧盟宪政发展的动力之一,同时也给欧盟宪政发展带来了挑战,无论是保持欧盟发展的动力还是避免欧盟宪政发展所遇到的挑战,都依赖于欧盟法律人格构成的三个因素———规制性支柱、规范性支柱与认知性支柱———之间的平衡。     

On the Value of Constitutions and Judicial Review

In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support of this conclusion. I argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining.     

Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America

Since 1978, all countries in Latin America have either replaced or amended their constitutions. What explains the choice between these two substantively different means of constitutional transformation? This article argues that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power‐concentrating design. It is further argued that the frequency of amendments depends both on the length and detail of the constitution and on the interaction between the rigidity of the amendment procedure and the fragmentation of the party system. The article provides statistical evidence to support these arguments and discusses the normative implications of the analysis.     

Political constitutionalism and populism

Criticisms of political constitutionalism's relationship to populism point in two opposed directions. Legal constitutionalists consider it too open to, and even as legitimating, populist politics, whereas radical democrats consider it too closed to popular participation, prompting an anti-system politics of a populist character. I dispute both these views. Underlying these contrasting assessments are differing conceptions of populism and constitutionalism. This article distinguishes right- from left-wing populism, and limited government from non-arbitrary rule, as constitutional ideals. Legal constitutionalism typically embraces the first ideal. However, that can be a driver of both right- and left-wing populism, and allow types of arbitrary rule that democratic backsliding and illiberal regimes can (and do) exploit. By contrast, political constitutionalism involves the second ideal and is antithetical to right-wing populism while potentially friendly to the legitimate demands of left-wing populism. Nevertheless, the practical reality of political constitutionalism in the United Kingdom (and elsewhere) often falls short of its ideal theoretical potential. Addressing these shortcomings, however, requires strengthening democracy rather than the legal constitution, not least through electoral reform.     

Constitutionalism,populism, and the imaginary of the authentic polity: a socio-legal analysis of European public spheres and constitutional demoicratization

The sociology of constitutionalism emphasizes the duality of constitutions as both power limitations and power enhancements. Following the socio-legal perspective, this article focuses on the constitutional imaginary of the public sphere and distinguishes it from the imaginary of the authentic polity, in which the constituent power of the people is protected against the corrupting effect of representative institutions and technocratic bodies. The promise of authenticity is behind the recent resurgence of populism and the constitution of what Zygmunt Bauman describes as ‘explosive communities’. The final part of the article focuses on the transnational politics and law of the European Union (EU) and discusses its possible responses to the imaginaries of constitutional populism – most notably, the emergence of European public spheres and demoicracy. Without the constitutional imaginaries of an anti-explosive transnational and democratically constituted community, further enhancement of the power of EU institutions will always lead to populist backlash at the national and local levels of its member states.     

Niccolò Machiavelli: Father of Modern Constitutionalism

Niccolò Machiavelli is the father of modern constitutionalism. Constitutionalism began anew in the modern world with the study of the ancient republics and it was Machiavelli who inaugurated this revived science of politics. Five hundred years after the composition of Il Principe and the Discorsi we are still working out the implications of applying reason to the structures of law and government in pursuit of justice and the common good. Modern constitutionalism and ancient republicanism share three central beliefs: first, that government should serve justice and the common good; second, that government should do so through known and stable laws; third, that these will best be secured through the checks and balances of a well‐designed constitution. Machiavelli took the theories and experiences of republican Rome and applied them to his own era. This application of reason to constitutional design transformed the politics of emergent modernity and reconfigured government throughout the world.     

The Supreme Court and the Social Conception of Abortion

Skeptics of Supreme Court power have pointed to abortion policy as an example of surprising limits on the justices' power to change society. I argue, however, that the Court's ruling in Roe v. Wade played a critical role in transforming how Americans think and talk about abortion. I develop an account of the development of the social conception of abortion from a critical reading of twentieth century American journalism and then test some predictions of that account through the use of quantitative content analyses. I conclude by discussing some implications for the study of judicial politics and public constitutionalism.     

宪政:中国的困境与出路——梁漱溟宪政思想研究

本文述介梁漱溟先生关于宪法与宪政的基本看法 ,特别是他从不同人文类型的观照中对于中国模仿、移植西方宪政的困境的分析 ,有关中国走向宪政之路的思虑 ,同时并述及各种政治力量对此所作的反应 ,指出在中国近代百年宪政思潮中 ,梁漱溟宪政思想的特立卓越处。     

The Past Does Not Repeat Itself,but It Rhymes: The Second Coming of the Liberal Anti‐Court Movement

The last ten years have witnessed the reemergence of fears of judicial power among scholars on the left. This renewed “Anti‐Court” movement includes the minimalism of Cass Sunstein, the popular constitutionalism of Mark Tushnet and Larry Kramer, and the bipartisan judicial restraint of Jeffrey Rosen. This essay traces the origin, development, and implications of this movement, noting its particular ties to historic trends in the academy: the Legal Process School, critical theory, and the positivist work of Gerald Rosenberg and Michael Klarman. The essay also considers the movement's preference for majoritarian politics—a partiality borne of dissatisfaction with the Rehnquist Court, but also, conversely, recognition of the failures of conservative attempts at policy making. The essay concludes by considering the ambitions of these scholars to develop a truly apolitical theory of judicial power. In light of the furious debate over the purported “minimalism” of John Roberts, severing theory from politics may prove impossible.     

The Judicial Transformation of the State: The Case of U.S. Trade Policy, 1974–2004

The recent shift in state policies from Keynesianism to neoliberalism was accompanied by a transformation in state structures. The case of trade liberalization in the United States reveals that this structural transformation is of a judicial nature. In 1974, supporters of free trade successfully shifted authority over the management of protectionist claims from Congress to quasi-judicial bodies in the U.S. executive; in 1994 , they successfully strengthened the dispute settlement mechanisms of the World Trade Organization. This judicial transformation indicates a shift from sites where decisions are made by way of political negotiations to sites where judges preside over legal disputes. In the article, I identify the political origins of these judicial transformations and discuss the factors that make judicial sites more favorable to neoliberal policies than political sites.     

Political Constitutionalism and the Question of Constitution‐Making

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

‘Delegated’ Legislation in the (new) European Union: A Constitutional Analysis

This article brings classic constitutionalism to an analysis of delegated legislation in the European Union. To facilitate such a constitutional analysis, it starts with a comparative excursion introducing the judicial and political safeguards on executive legislation in American constitutionalism. In the European legal order, similar constitutional safeguards emerged in the last fifty years. First, the Court of Justice developed judicial safeguards in the form of a European non‐delegation doctrine. Second, the European legislator has also insisted on political safeguards within delegated legislation. Under the Rome Treaty, ‘comitology’ was the defining characteristic of executive legislation. The Lisbon Treaty represents a revolutionary restructuring of the regulatory process. The (old) Community regime for delegated legislation is split into two halves. Article 290 of the Treaty on the Functioning of the European Union (TFEU) henceforth governs delegations of legislative power, while Article 291 TFEU establishes the constitutional regime for delegations of executive power.     

Judicial Evaluation of Religious Belief and the Accessibility Requirement in Public Reason

Many theories of liberal public reason exclude claims derived from religion on grounds that religious beliefs are not publicly ‘accessible’, because they are not amenable to meaningful evaluation by outsiders to the faith. Some authors, though, have argued that at least some religious beliefs are, in fact, publicly accessible. This paper examines the consequences of these arguments by exploring the accessibility requirement in relation to U.S. judicial precedent concerning religious accommodation. I first show that precedent accords de facto with the accessibility requirement by precluding judicial evaluation of the content of religious beliefs. I then show that this norm is independent of the status of religious claims vis-à-vis accessibility: even granting the accessibility of religious beliefs, other important political ends weigh against judicial evaluation of the content of those beliefs. I then generalize this conclusion to the broader enterprise of public reason, suggesting the general inadequacy of the accessibility requirement.