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Our Unsettled Constitution

Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review

Copyright Date: 2001
Published by: Yale University Press
Pages: 272
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  • Book Info
    Our Unsettled Constitution
    Book Description:

    Ours is an age of growing doubt about constitutional theory and of outright hostility to any theory that defends judicial review. Why should a tiny number of unelected judges be able to validate or invalidate laws on such politically controversial issues as abortion, religion, gender, and sex-or even determine how the president is elected? In this provocative book, a leading constitutional theorist offers an entirely original defense of judicial review. Louis Michael Seidman argues that judicial review is defensible if we set aside common but erroneous assumptions-that constitutional law should be independent from our political commitments and that the role of constitutional law is to settle political disagreement.Seidman develops a theory of "unsettlement." A constitution that unsettles, that destabilizes outcomes produced by the political process, creates no permanent losers nursing deep-seated grievances, he says. An "unsettling" constitution helps to build a community founded on consent by enticing losers into a continuing conversation. The author applies this theory to an array of well-known cases heard by the Supreme Court over the past several decades, including the fall 2000 election decision.

    eISBN: 978-0-300-14785-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction: A New Theory of Constitutional Law
    (pp. 1-11)

    I might as well admit it: I am terrified by the title that I myself have given to this introductory chapter.

    Is it conceivable that there is something both new and sensible to say about constitutional theory? People have been writing about this subject for several millennia. Surely we are at the point where anything one might say that is original is bound to be silly and anything that is not silly is bound to be unoriginal.

    We live in an age of growing doubt as to the utility of any normative theory of constitutional law, much less a new...

  5. 1 The Impossible Constitution
    (pp. 12-33)

    Modern constitutional theorists and judges rarely ask the most fundamental questions about constitutional law. Preoccupied with figuring outwhatthe Constitution commands andhowthe Constitution’s commands should be enforced, they almost never think about why the Constitutionoughtto be obeyed and whether itcanbe.

    The “what” question is about the substance of constitutional law. Sometimes it concerns specific constitutional doctrine. Does the Fourteenth Amendment, properly understood, guarantee a right to die? Can Congress delegate to the president the power to veto portions of legislation? Does a state have the power to require its employees to live within...

  6. 2 Strategies for a Just Peace
    (pp. 34-60)

    If the argument of the previous chapter is correct, we need to think harder about what we should expect from constitutional law. At least as we have defined it so far, constitutional theory provides no reason for citizens to accept constitutional principles that lead to political outcomes with which they disagree. This chapter explores how constitutional theory could be reformulated to provide a reason. I shall argue that the best hope for such a theory is to give up on some of the claims that have been made for the theories that failed. Specifically, we must relax two interrelated assumptions...

  7. 3 Constitutional Boundaries
    (pp. 61-85)

    The preceding chapter set forth an account of how constitutional law might help us to achieve a just and legitimate political community. I have said nothing so far, however, about the specific mechanisms by which it accomplishes this task. For those who adhere to a settlement theory, there is nothing mysterious about these mechanisms: the Constitution embodies a settlement that resolves disputes between community members, thereby ensuring social peace. It is much less clear, though, how anything resembling constitutional law might serve to unsettle current arrangements. After all, isn’t constitutionalism necessarily about entrenchment and settlement?

    In this chapter, I hope...

  8. 4 The Elusive Goal of Unsettlement
    (pp. 86-108)

    I have suggested that the primary virtue of liberal constitutionalism is its incoherence, which can be put to good use if our aim is to build an unsettled constitution. Unresolvable conflicts between the paired opposites that dominate constitutional analysis can build community by allowing losers to attack entrenched arrangements. Moreover, our own appreciation of these conflicts can help us empathize with our political foes even as we argue with them.

    I have also suggested that judges are institutionally well positioned to foment this sort of creative conflict. In a variety of ways, they live and work in the borderland between...

  9. 5 The Constitution of Political Community
    (pp. 109-143)

    The preceding chapters have been dominated by theory. But no theory is worthwhile unless it aids our understanding of the real world. This does not mean that theories must predict real-world behavior. Good theories can be normative as well as positive. Still, any worthwhile theory must provide us with tools for either understanding or criticizing observed behavior. Consequently, I shall now examine discrete areas of constitutional doctrine through the lens of unsettlement theory to demonstrate how this doctrine can be better defended and understood, criticized and reformed.

    This chapter focuses on the ways in which constitutional doctrine determines the appropriate...

  10. 6 The Structure of Unsettlement
    (pp. 144-172)

    If the constitutions of just communities produce fluid and contested boundaries, how do these communities make decisions? In this chapter, I argue that decision-making structures cannot achieve political settlement. Even readers who have been sympathetic with what I have said so far may find this claim implausible. Much of the U.S. Constitution consists of a detailed specification of these structures. The Constitution establishes terms of office for various officials,¹ allocates power among different branches of government,² sets forth procedures by which bills become laws,³ and establishes rules for succession in the event of the death or disability of a president.⁴...

  11. 7 The Right to Unsettlement
    (pp. 173-209)

    In Chapters 5 and 61 discussed constitutional law as the specification of a framework that generates political decisions. Framework theories aim at producing a just political order, but they pursue this goal through indirection. Instead of explicitly specifying a set of results, they rely upon structures and boundaries to generate just outcomes more or less automatically. These approaches stand in opposition to theories that attempt to mandate particular substantive outcomes by, for example, listing a set of rights that the polity must protect. This chapter discusses this rival, substantive-specification approach.

    Some constitutional theorists have claimed that the framework approach is...

  12. Conclusion: Unsettling Unsettlement
    (pp. 210-216)

    Finally, we come to the challenge of reflexivity. If the constitution is indeed successful in unsettling, must it not entrench settled structures (like expansive judicial review) that assure its continued capacity to unsettle? After all, if the unsettling structures were themselves unsettled, they might be abandoned and so produce settlement.

    The problem runs deeper. I have argued that any constitutional settlement obstructs just community by excluding people who disagree with the settlement. But what of people who disagree with unsettlement? Aren’ttheyexcluded by a constitution that entrenches a condition—unsettlement—that they detest? It would seem that authentic unsettlement...

  13. Notes
    (pp. 217-252)
  14. Index
    (pp. 253-260)