The Limits of Constitutional Democracy:

The Limits of Constitutional Democracy:

Jeffrey K. Tulis
Stephen Macedo
Copyright Date: 2010
Pages: 360
https://www.jstor.org/stable/j.ctt7s1w4
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  • Book Info
    The Limits of Constitutional Democracy:
    Book Description:

    Constitutional democracy is at once a flourishing idea filled with optimism and promise--and an enterprise fraught with limitations. Uncovering the reasons for this ambivalence, this book looks at the difficulties of constitutional democracy, and reexamines fundamental questions: What is constitutional democracy? When does it succeed or fail? Can constitutional democracies conduct war? Can they preserve their values and institutions while addressing new forms of global interdependence? The authors gathered here interrogate constitutional democracy's meaning in order to illuminate its future.

    The book examines key themes--the issues of constitutional failure; the problem of emergency power and whether constitutions should be suspended when emergencies arise; the dilemmas faced when constitutions provide and restrict executive power during wartime; and whether constitutions can adapt to such globalization challenges as immigration, religious resurgence, and nuclear arms proliferation.

    In addition to the editors, the contributors are Sotirios Barber, Joseph Bessette, Mark Brandon, Daniel Deudney, Christopher Eisgruber, James Fleming, William Harris II, Ran Hirschl, Gary Jacobsohn, Benjamin Kleinerman, Jan-Werner Müller, Kim Scheppele, Rogers Smith, Adrian Vermeule, and Mariah Zeisberg.

    eISBN: 978-1-4008-3679-6
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Introduction. Constitutional Boundaries
    (pp. 1-10)
    JEFFREY K. TULIS and STEPHEN MACEDO

    Our large theme is failure and success in constitution making, or the limits of constitutional democracy. The convergence of recent scholarly work in political science and law and political events throughout the world make this a timely project inside and outside of the academy. The number of new constitutional texts written in support of regime formation in the past thirty years is astonishing. The profusion of ideas and scholarship on constitution making also marks a milestone for social science, which had long neglected the study of laws and constitutions, and for legal studies, which recently added the study of constitutional...

  4. PART I WHAT IS CONSTITUTIONAL FAILURE?
    • 1 Constitutional Failure: Ultimately Attitudinal
      (pp. 13-28)
      SOTIRIOS A. BARBER

      As ideological divisions widen and continue to weaken the common ground of the nation’s civic life, American constitutional theorists and social scientists have reopened a recurring question: is the Constitution adequate to its ends? Alan Wolfe laments the moralistic populism and public cynicism that has all but destroyed Congress’s institutional integrity and democratic accountability.¹ Sanford Levinson shows how “hard-wired” constitutional provisions like the Electoral College and the composition of the Senate contribute to bad policies and institutional decay.² Ronald Dworkin proposes a theory of human dignity as common moral ground for rescuing American politics from ideological warfare and restoring genuine...

    • 2 Successful Failures of the American Constitution
      (pp. 29-46)
      JAMES E. FLEMING

      What is constitutional failure? Does it presuppose a conception of constitutional success and of the preconditions for constitutional success?¹ How does a constitutional failure differ from or relate to other constitutional misfortunes, such as an imperfection in the constitutional document (e.g., the imperfect provision for affirmative liberties, which has led to decisions likeDandridge v. Williams, San Antonio v. Rodriguez, Harris v. McRae,andDeShaney v. Winnebago County);² a decision in constitutional law that has horrible consequences for the lives of particular citizens or groups and for the way of life of the polity (e.g.,Dred Scott v. Sandford, Plessy...

    • 3 The Disharmonic Constitution
      (pp. 47-65)
      GARY JEFFREY JACOBSOHN

      Constitutions may be viewed as instruments through which “a nation goes about defining itself.”¹ This is often attempted in preambles—but in other parts as well—wherein all manner of noble intentions are detailed in lofty and inspiring prose. However genuine may have been the intentions of the authors of this kind of language, experience leads us to anticipate a substantial disconnect between word and deed as constitutional development unfolds. But if our response to this nearly certain story line is to abandon the idea that constitutions have significant expressive value, we may be asking language to bear more weight...

    • 4 Constitution of Failure THE ARCHITECTONICS OF A WELL-FOUNDED CONSTITUTIONAL ORDER
      (pp. 66-88)
      WILLIAM F. HARRIS II

      At its simplest, a constitution is a proposition against failure.

      Historically and analytically, this observation reflects the disposition of the constitutional Founding in the United States. The theoretical reciprocity between the Constitution (as the construction of a world of success) and Failure (as the projection of an alternative world of collapse¹) is the key to the architectonics of a founded constitutional order.

      In more particular terms, the Founding of Constitutional America encompasses a Constitution of Order substantially corresponding to a Constitution of Disorder. The two exist side by side as the comprehensively established possibilities of the American civic world. From...

  5. PART II HOW CAN CONSTITUTIONAL DEMOCRACY CONTEND WITH EMERGENCY?
    • 5 “In the Name of National Security” EXECUTIVE DISCRETION AND CONGRESSIONAL LEGISLATION IN THE CIVIL WAR AND WORLD WAR I
      (pp. 91-111)
      BENJAMIN A. KLEINERMAN

      In the face of profound security threats, constitutional republics seem both to require and to rightfully fear powers that threaten the legal and nonarbitrary political order that they otherwise seek to maintain. Real political and civil freedom seems to demand that governmental power becomes authority, that is, it becomes legal, only if it is constrained within certain definitive and well-promulgated boundaries. Walter Murphy defines this as constitutionalism: “Every exercise of governmental power should be subject to important substantive limitations and obligations.”¹ And yet unanticipated exigencies may require the exercise of power that either could never have been anticipated by the...

    • 6 The Possibility of Constitutional Statesmanship
      (pp. 112-123)
      JEFFREY K. TULIS

      True statesmanship lives in a space outside of any constitutional order and would be a threat to constitutionalism or to at least to many particular constitutional orders if we actually tried to nourish its possibility. I indicate how and why this is so but also suggest that the American Constitution replaces what I am calling true statesmanship with a much narrower version. What we call statesmanship is an idealized form of a constitutional officer. A constitutional officer is neither a leader nor a statesman but rather something in between.

      One simple and straightforward distinction between leadership as understood by political...

    • 7 Exceptions That Prove the Rule EMBEDDING EMERGENCY GOVERNMENT IN EVERYDAY CONSTITUTIONAL LIFE
      (pp. 124-154)
      KIM LANE SCHEPPELE

      Temptations to cut constitutional corners are persistent and real in the face of serious (or seriously imagined) threats to the state. When governments must respond to a crisis—a war launched over the border, an enemy within, terrorists who could be anywhere—security seems to take precedence over separation of powers and over rights, the basic elements of constitutional governance. In fully constitutional states, crises eventually give way to normal governance when the threat subsides—or so the story goes. But a review of actually existing emergencies indicates that crisis government does not disappear when those who call it into...

  6. PART III HOW CAN CONSTITUTIONAL DEMOCRACY CONTEND WITH WAR?
    • 8 The Glorious Commander in Chief
      (pp. 157-167)
      ADRIAN VERMEULE

      In a short but intensely brilliant discussion in book II, chapter 33, of hisDiscourses on Livy,¹ Machiavelli argues that the Romans’ military successes were due, in part, to the Senate’s long-standing refusal to exercise any power relating to armed conflict other than that of “starting new wars and of ratifying peace.”² In brief—and this is the title of Machiavelli’s essay—“[T]he Romans Gave Free Commissions to Their Captains of Armies,” leaving them uncontrolled in their military operations, and were right to do so. Restricted legislative oversight gave free rein to the executive’s propensity for glory seeking, which produced...

    • 9 The Relational Conception of War Powers
      (pp. 168-193)
      MARIAH ZEISBERG

      The U.S. Constitution’s allocation of the authority to initiate military hostilities is conspicuously vague. In contrast to its concrete placement of the power to borrow money in the hands of Congress, or of the power to grant pardons in the hands of the president, the war power is distributed between the branches in ways that defy easy categorization. Congress is given authority to “declare war,” but it is unclear whether “declaring war” is the same power as authorizing hostilities.¹ And, although the hierarchical structure of the president’s office, the fact that it never adjourns, and his role as commander in...

    • 10 Confronting War RETHINKING JUSTICE JACKSON’S CONCURRENCE IN YOUNGSTOWN V. SAWYER
      (pp. 194-216)
      JOSEPH M. BESSETTE

      During Senate hearings in September 2005 on federal judge John Roberts’s nomination to serve as chief justice of the Supreme Court, Senator Patrick Leahy (D-VT), ranking minority member of the Judiciary Committee, pressed Roberts on whether the president was bound by congressional statute. Roberts offered that “no one is above the law.” He added that when Congress and the president disagree over an exercise of “asserted executive authority,” the “framework for analyzing this is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman’s seizure of the steel mills.” He specifically cited “Justice [Robert] Jackson’s...

    • 11 War and Constitutional Change
      (pp. 217-236)
      MARK E. BRANDON

      As Walter Murphy has cogently demonstrated, maintaining a constitutional democracy is a subtle, demanding enterprise even under the best of circumstances.¹ For obvious reasons, the demands of maintenance can be acute in time of war. This is not to suggest, however, that war is always to be avoided. An uncertain, dangerous, or threatening international environment can make the use of armed force a rational policy for a political order aiming to protect, maintain, or strengthen itself. This is all the more true if the order is attacked or invaded, when physical or political survival may be at stake. But, even...

  7. PART IV HOW CAN CONSTITUTIONAL DEMOCRACY CONTEND WITH GLOBALIZATION?
    • 12 Three Constitutionalist Responses to Globalization
      (pp. 239-255)
      JAN-WERNER MÜLLER

      In recent debates on globalization, constitutionalism has created surprisingly high hopes and astonishingly deep anxieties: some have presented the constitutionalization of international law as a kind of last “realistic utopia”;¹ others have been profoundly troubled precisely by the threat that international law and global governance supposedly pose to the project of constitutional self-government.² Rather than another specific constitutionalist proposal, this chapter seeks to provide a sober assessment of constitutionalism’s potential and limits by describing and evaluating three paradigmatic constitutionalist responses to increased global interdependence.

      The responses I have in mind all take constitutionalism seriously as a complex normative concept; they...

    • 13 Constitutionalism in a Theocratic World
      (pp. 256-279)
      RAN HIRSCHL

      Over the past few decades, principles of theocratic governance have gained enormous public support worldwide.¹ At the same time, the world has witnessed the rapid spread of constitutionalism and judicial review. Constitutional supremacy—a concept that has long been a major pillar of the American political order—is now shared, in one form or another, by more than one hundred countries and several supranational entities across the globe.² At the uneasy intersection of two sweeping trends—the tremendous increase of popular support for principles of theocratic governance and the global spread of constitutionalism—a new legal and political order has...

    • 14 Constitutional Democracies, Coercion, and Obligations to Include
      (pp. 280-296)
      ROGERS M. SMITH

      Walter Murphy has argued persuasively that the term “constitutional democracy” should be reserved for political systems that do more than provide the rule of law and some system of representation. Constitutional democracies are founded on beliefs in “equal human dignity, defined to include a wide degree of individual liberty”; so constitutionalism demands adherence to “principles that center on respect for human dignity and the obligations that flow from those principles.”¹ Here I argue that constitutional democracies should recognize one such obligation that provides a partial guide to the perennial and today often acute issue of who should be included as...

    • 15 Omniviolence, Arms Control, and Limited Government
      (pp. 297-316)
      DANIEL DEUDNEY

      Unexpectedly, a grave new world of large-scale terrorism threatens the prospects for the free world project and the United States’ role in it. A mere long decade ago, in what now seems like a very different time, the United States and the liberal democracies, after long travails and struggles, seemed poised to realize the modernized Enlightenment vision of a world of free states. In the wake of a violent century of competition with powerful fascist and imperial authoritarian and totalitarian states, the coalition of liberal democratic states lead by the United States stood in a position of global hegemony never...

  8. Conclusion. Constitutional Engagement and Its Limits
    (pp. 317-328)
    CHRISTOPHER L. EISGRUBER

    The contributors to this volume appreciate constitutional conflict. I do not mean merely that they recognize that conflict exists and that constitutions must cope with it. Those banal insights would not distinguish the perspectives represented in this book from more conventional accounts that regard constitutions as devices for resolving political disputes. The essays collected here do something more remarkable: they treat durable conflict as a sustaining element, a kind of animating tension, within constitutionalism. Though some conflicts must indeed be resolved, conflict itself must be nurtured or the constitutional project will fail. Thus, Sotirios Barber contends that “the chief measure...

  9. List of Contributors
    (pp. 329-332)
  10. Index
    (pp. 333-353)