We enter here upon a history of conversational traffic between the respective departments of philosophy and law in the old academy of liberalism, where lawyers hear much from philosophers, yes-and philosophers hear from lawyers, too, in what has fruitfully been a both-ways exchange. Our philosophical protagonist is John Rawls. This book comprises a study of the rise and workings, within the Rawlsian political-liberal philosophy, of the idea of a country's higher-legal constitution as a public platform for the justification of political (...) coercion. A study of Rawls on constitutionalism can help us, I believe, in scoping out and managing a cluster of constitutional lawyers' debates-interminable ones, it seems, in the constitutional-democratic precincts of our times-that I will catalogue soon below. But conversely, I believe, those seeking the best and truest readings of Rawls might have something to learn from the controversies of the lawyers. My approach to Rawls has accordingly been that of a critically leavened (while no doubt broadly sympathetic) exegesis, while with the legal-discursive materials I take more of a diagnostic turn. My hope is that a treatment of these two discourses in relation to each other will prove an aid to both political-philosophical and legal-practical reflection. (shrink)

In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the (...) values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal. (shrink)

In The Democratic Horizon: Hyperpluralism and the Renewal of Political Liberalism, Alessandro Ferrara seeks a philosophical breakthrough from what looks like it could be a pending dead-end for democracy. The best hope, Ferrara superbly maintains, lies through an extension or updating – a “renewal,” as he calls it – of lines of thought bequeathed to us, by John Rawls and others, under the name of political liberalism. Somewhere near the crux of Ferrara’s reflection stands a class of institutional fixtures whose (...) name is missing from his title. I mean the class “constitution.” I use that word to name a country’s scriptural basic law, its publicly cognizable corpus of canonically worded sentences ordaining the country’s basic institutional framework. My suggestion will be that it is no less tellingly a “constitutional” than a “democratic” horizon that Ferrara’s work, in conjunction with Rawls’s, shows us to be facing. (shrink)

John Rawls proposed, as what he called “the liberal principle of legitimacy,” that coercive exercises of political power can be justified to free and equal dissenters when “in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse.” Does “unwritten constitution” there refer to norms of constitutional import, but that subsist only as custom, not as law? To norms that subsist as common law but not as code law? To empirical regularities (...) of political practice, as opposed to normative rules and standards? Which interpretation is best? (shrink)

In a modern, plural society, there can be no settled agreement on the concrete legal content of a country's constitution. The idea of the constitution is nonetheless pivotal in contemporary, liberal‐minded theories of political justification, such as the ones advanced by Jürgen Habermas and John Rawls. Justification in these theories depends finally on “constitutional patriotism,” a consciously shared sentiment arising from an ethical assessment of their country by the country's people, according to which the country credibly pursues a certain regulative (...) political ideal for which the constitution stands. (shrink)

The question of what is truly just in the matter of a country's currently established human-rights interpretations appears not to be the same as the question of what it is morally right to do by way of coercively effectuating a given set of such interpretations. There are grounds for contending that acts of support for a coercive political regime can be justified morally on the condition that the regime's prevailing human-rights interpretations are made continuously available to effective, democratic critical re-examination. (...) However, it is not possible ever finally to know whether that condition is satisfied. (shrink)

The term “judicial restraint,” applied to courts engaged in judicial constitutional review, may refer to any one or more of three possible postures of such courts, which we here will distinguish as “quiescent,” “tolerant,” and “weak-form.” A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution’s name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonable sustainable, even though it independently would conclude (...) to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs. (shrink)

Prescriptive political and moral theories contain ideas about what human beings are like and about what, correspondingly, is good for them. Conceptions of human “nature” and corresponding human good enter into normative argument by way of support and justification. Of course, it is logically open for the ratiocinative traffic to run the other way. Strongly held convictions about the rightness or wrongness, goodness or badness, of certain social institutions or practices may help condition and shape one's responses to one or (...) another set of propositions about what people are like and what, in consequence, they have reason to value. (shrink)