Constitutionalism, Identity, Difference, and Legitimacy: by Michel Rosenfeld

By Michel Rosenfeld

Interest in constitutionalism and within the courting between constitutions, nationwide id, and ethnic, spiritual, and cultural variety has soared because the cave in of socialist regimes in jap Europe and the previous Soviet Union. seeing that international struggle II there has additionally been a proliferation of latest constitutions that fluctuate in numerous crucial respects from the yankee structure. those advancements increase many vital questions about the nature and scope of constitutionalism. The essays during this volume—written by means of a global staff of favorite felony students, philosophers, political scientists, and social theorists—investigate the theoretical implications of modern constitutional advancements and produce precious new views to endure on a few of the most lasting questions confronting constitutionalism and constitutional theory.
Sharing a standard specialise in the interaction among constitutional id and person or workforce variety, those essays supply tough new insights on matters starting from common constitutional norms and even if constitutional norms may be effectively transplanted among cultures to a attention of even if constitutionalism offers the skill to reconcile a various society’s quest for identification with its have to correctly account for its transformations; from the relation among constitution-making and revolution to that among collective pursuits and constitutional liberty and equality.
This collection’s wide scope and nontechnical type will have interaction students from the fields of political conception, social concept, overseas experiences, and law.

Contributors. Andrew Arato, Aharon Barak, Jon Elster, George P. Fletcher, Louis Henkin, Arthur J. Jacobson, Carlos Santiago Nino, Ulrich okay. Preuss, David A. J. Richards, Michel Rosenfeld, Dominique Rousseau, András Sajó, Frederick Schauer, Bernhard Schlink, M. M. Slaughter, Cass R. Sunstein, Ruti G. Teitel, Robin West

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6s To the extent that constitutionalism is conceived as essentially antidemocratic, moreover, judicial review would appear to be easy to justify as a most useful, if not necessary, adjunct to the constitutional curbing of democratic excesses. In contrast, the more constitutionalism and democracy are viewed as being convergent, the more it would seem unjustified to leave the last word in constitutional interpretation to an unelected judicial elite. Nino's analysis reveals that the relevant correlations between judicial review and the interplay between constitutionalism and democracy are not as straightforward as might at first appear.

769 (1985). As used by [Jean-Jacques] Rousseau, the notion of the general will is certainly somewhat mysterious and not altogether consistent. But it is clearly not reducible to an individual's particular will or to the will of the majority (in the sense of a mere aggregate of individual wills). " 60 61 26 Michel Rosenfeld Rescuing the general will from inevitable degradation into the will of the majority necessitates, according to Rousseau, a change in the French constitutional order. That change, in tum, requires granting increased powers to the constitutional judge in order to effectuate a shift from democratic politics to constitutional democracy.

S. CONST. amend. XIV, § 1 (the Due Process and Equal Protection Clauses). 47 Cj McCulloch v. S. ) 316,415 (1819) ("[Constitutional provisions are) intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the [constitution), and give it the properties of a legal code. "). 48 Many legal scholars in the United States have argued against confining constitutional interpretation to the discovery and implementation of the "original intent" of the constitution makers.

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