Constitutional Imagination Research Articles

On the New German Ideology

Postwar Europe is partly reconstituted by a fear of democratic freedom, and a desire for political and economic stability. Constitutional relations are transformed over time through a mixture of political authoritarianism and economic liberalism. This takes place in a combination of domestic and supranational developments. The transformation also has a utopian dimension, and outlining its utopianism can help identify its ideological character. It is captured by such related terms as ‘postpolitics’, ‘post-nationalism’, ‘post-sovereignty’ and ‘the ‘end of history’. These terms all point to the way in which authoritarian liberalism is maintained not only – and perhaps not even predominantly - through coercion and consent but also in the grey area in between, namely through practices and beliefs that suggest politics can be transcended and the medium of law reign supreme. We may call this the new German ideology. It becomes a dominant trope in the European constitutional imagination. Although it is unsettled after Maastricht and enters a critical phase through the financial crisis, the new German ideology remains relatively resilient. It benefits from the support of a critical theory that has lost its moorings, and a political system that is able to incorporate aspects of authoritarian populism, even as the centre ground appears increasingly fragile.

Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China†

Abstract American constitutional law haunts the contemporary Chinese constitutional imagination. China’s reception of American constitutional law occurred in two major stages. In the first stage, which spanned from the 1980s to the early 1990s, Chinese intellectuals understood American constitutionalism as a particular political regime to be politically criticized or objectively appraised, with the tripartite separation of powers overwhelmingly highlighted as a core feature of the American constitutional-political system. In the second stage, which began in the late 1990s, a paradigmatic shift from a political, regime-centered perspective to a legalized, court-centered approach occurred in China’s introductions to and studies of American constitutionalism. The U.S. Supreme Court and the concept of judicial review now primarily preoccupy most Chinese constitutional minds; these features of the American system have formed the focal points of reference for Chinese constitutional reform. This shift from the first stage to the second reflects both ideological and social changes since the economic reform in China, as well as international impacts.

The Closing of the American Constitutional Imagination

In his relentlessly substantive and intelligent book, The Second Creation: Fixing the American Constitution in the Founding Era, Stanford historian Jonathan Gienapp offers an important contribution to founding scholarship and a fresh and foundational challenge to originalism. Specifically, Gienapp examines how the founders answered the question, what is a constitution? The historical narrative resulting from Gienapp’s research into this question traces the eclipse and eventual replacement of “incomplete” and “unfinished” understandings of constitutional identity with a form of constitutional consciousness he calls “constitutional fixity.” This review essay identifies several contributions of Second Creation and explains how and why it represents a fundamental challenge to originalism. It takes issue, however, with Gienapp’s understanding of the evolution of James Madison’s understanding of constitutional identity and suggests that “constitutional fixity” may have been present in the political thought of the American founders earlier than Gienapp claims.

Literature and Law in the Era of Magna Carta by Jennifer Jahner

Reviewed by: Literature and Law in the Era of Magna Carta by Jennifer Jahner Tom Johnson Jennifer Jahner. Literature and Law in the Era of Magna Carta. Oxford: Oxford University Press, 2019. Pp. 304. $85.00. "To accept domination by an abstract idea has never been a weakness of England," wrote Ernst Kantorowicz in The King's Two Bodies, his famous analysis of medieval sovereignty, "though a useful fiction might more readily be accepted." And indeed, historians have long noted the fictive qualities of the legal texts that make up the English constitution. As long ago as 1965, Jim Holt pointed to the rhetorical and highly partial histories that underlay baronial claims in Magna Carta, as they looked back to rights supposedly granted to them in the coronation charter of Henry I and the laws of Edward the Confessor (J. C. Holt, Magna Carta [Cambridge: Cambridge University Press, 1965]). But historians are rarely prepared to attend to the broader understandings of fictionality within which these useful constitutional fictions are constructed. In this impressive new book, Jennifer Jahner shows the compelling breadth of interpretations afforded by literary readings of English law during its period of critical formation. Central to her claim is the premise that law was "dependent both procedurally and theoretically on the flexible capacities of metaphor and fiction" (6). This means that it is the grammar classroom, rather than the law-book, to which we must look in order to understand the formation of the constitutional imagination in this period. Jahner ably exposes this connection in the first half of the book. But she also pursues a bolder argument, which is that through a literary attention to jurisdiction, we can more easily critique the vexed teleological narratives that frame constitutionalism as a progressive process that gradually clarifies the nation state. Borrowing from the legal scholar Richard T. Ford, she sees two mutually constitutive concepts of jurisdiction, representing either a "synthetic" state bureaucracy or an "organic" autonomous community, [End Page 409] embedded in the very foundations of English constitutionalism. These concepts can both act as vehicles for discourse framed around the nation, but the creative tensions between them ought to be understood as a jurisdictional poetics. Their incommensurability, Jahner suggests, prefigure the binary conflicts between different powers—king and baron, Church and state, regnal and local—that characterize subsequent constitutional struggles over the nature of political legitimacy. Writing as a captive passenger in the front seat of the Brexit death-drive, this emphasis seems to me a useful explanation for England's longue durée pyschodrama with authority, in the Middle Ages and beyond. It is a mark of Jahner's range and subtlety that she turns, in the final word, not to these obvious resonances with contemporary Britain, but to Carter Revard, the Osage medievalist-turned-poet. In a poignant meditation on his poem "Starring America" in the coda to the book, Jahner suggests the possibilities of poetic composition as a way of exploding the flattened vision of empire. But these more explorative reflections build upon an extremely scholarly account of the literary and legal culture of the twelfth and thirteenth centuries. The first chapter explores the "paradigmatic jurisdictional drama" of the Becket controversy, which works to set up some of the broader arguments about law and its exemptions and to provide a sketch of the range of literary education in this period, encompassing both the trivium, and the emerging disciplines of canon and civil law. The main analysis focuses upon John of Salisbury's Entheticus de dogmate philosophorum, a poem often understood as an inferior, early draft of the Policraticus. Jahner draws out not only the text's juxtaposition of the "law" of grammar with jurisdictional order, but the way in which it exposes the tensions of the just royal counselor's position, caught between king and conscience. Becket's rhetorical mastery thus comes to be framed by his supporters not as courtly guile, but as a consequence of his ethical idealism; his capacity to speak freely is paired with his status as a living embodiment of ecclesiastical liberty. The second chapter moves these themes forward by examining the development of a new educational form, the...

European Constitutional Imagination: A Whig Interpretation of the Process of European Integration?

In this essay, we challenge the characterisation of European law as a constitutional order from two related standpoints, namely, the ambiguity of what is meant when characterising European law as constitutional, and the lack of a well-argued narrative explaining how European law became constitutional and what type of constitutionalism it has developed. We start by clarifying the concept and conceptions of constitution, emphasising the centrality of the structural and normative conceptions of constitution. This preliminary conceptual work facilitates the task of elucidating what is exactly being argued when it is claimed that European law is constitutional, and what implications are consequently justified. We then note that while the process of constitutionalisation plays a key role in structuring European law as a discipline, normative reasons underlying such characterisation remain, if anything, more assumed than explicit and fully demonstrated. This leads us to conclude by arguing that may be preferable not to imagine contemporary European law in constitutional terms. At the same time, however, we note that the power effectively held by the European Union reaches so many corners of national legal and socio-economic structures as to render insufficient to merely reject any claim to its constitutionality. The predicament of European Union law is that of a legal order that de facto discharges functional tasks proper of constitutional orders while lacking the requisite democratic and social credentials.

Class Struggle, Group Rights and Socialist Pluralism on the Lower East Side – Radical Lawyering and Constitutional Imagination in the Early Twentieth Century

Class Struggle, Group Rights and Socialist Pluralism on the Lower East Side – Radical Lawyering and Constitutional Imagination in the Early Twentieth Century

Israel's New Constitutional Imagination: The Nation State Law and Beyond

The following analysis of the Israeli Nation State law reflects on the emerging new constitutional imagination in Israel. It argues that this Zionist imagination mirrors the deep sociological and political changes taking place in Israeli society. The hegemonic political elites have transformed the Israeli constitutional identity from one based on constructive legal ambiguity into one rooted in exclusive ethno-theological values. The latter stands in direct negation of the Zionist constitutional formula promoted by the founding fathers of the State as embodied in the 1948 Declaration of Independence. This rhetoric of the Declaration of Independence incorporated liberal values, in spite of the fact that the Labour Zionist political elite of the time was not fully committed to the practical meanings of these values. The current hegemonic elite in Israel views such a veiling strategy as not only unnecessary, but also as hazardous.

Authoritarian Liberalism in Europe: A Common Critique of Neoliberalism and Ordoliberalism

The differences between ordo- and neoliberalism are many and varied. This article suggests, however, that in directing the constitutional dynamic of European integration and postwar reconstruction, ordo- and neoliberalism represent a single movement: a conjunction of political authoritarianism and economic liberalism in opposition to democracy and especially in opposition to democratic constituent power. This dynamic becomes more evident with the Euro-crisis response, but it represents the deeper logic of postwar reconstruction. With a longer historical arc in view, authoritarian liberalism can be traced as a reaction to the interwar breakdown of liberal democracy, based on a narrow diagnosis of democratic collapse. Postwar Europe is thus reconstituted on the basis of a substitution of economic for political freedom as a legitimating device for the new constitutional imagination.

The Refugees We Are: Solidarity in the European Constitutional Imagination

The Refugees We Are: Solidarity in the European Constitutional Imagination

The Charisma of the European Central Bank: From Political Sacrifice to Monetary Rituals

The article expands Paul Kahn’s cultural analysis of the US Supreme Court’s charisma to EU institutions and, in particular, to the European Central Bank. The aim is twofold: on the one hand, the intention is to show the rich potential of the cultural study of law for understanding different constitutional experiences; on the other hand, the aim is to show that political sacrifice may not be the only material for building constitutional imagination. As the analysis of the ECB’s unconventional intervention into the Euro-crisis tries to establish, other forms of sacrifice might be conjured up, in a context where the constitutional order is held together more by rituals rather than violent commitments. Although the ECB does not enjoy sovereign authority, it has been able to maintain stable (though at a high price, not only metaphorically) the eurozone legal order.

Global constitutionalism and constitutional imagination

Abstract:There is a difference between the normative reasons for endorsing global constitutionalism and the conditions determining its emergence. This article addresses the latter issue. Specifically, the article claims that global constitutionalism rests on an underexploredshift in constitutional imagination. To account for this claim, the article is structured in several parts. It begins by clarifying the meaning of ‘constitutional imagination’. In so doing it builds on Kant’s concept of imagination (‘Einbildungskraft’) and in its reception by Hannah Arendt. The article then illustrates the significance of constitutional imagination by focusing on two major developments in constitutional thinking. The first development involves the shift away from a narrative reconstruction of constitutional authority; the second points to acosmopolitanisationof constitutional imagination.

From Regime to Law: American Constitutionalism in Contemporary China

American constitutional law has dominated China’s constitutional imagination for the nearly past two scores. The reception of American constitutional law in China experienced two large phases. In the first, which spans from the 1980s to the early 1990s, American constitutionalism was taken as a particular political regime to be politically criticized or objectively appraised. Tripartite separation of powers was overwhelmingly highlighted to characterize American constitutional-political system. In the second, starting in the late 1990s, a paradigmatic shift from a political, regime-centered perspective to a legalized, court-centered approach occurred in the introduction of and studies on American constitutionalism. The U.S. Supreme Court and judicial review now overwhelms most Chinese constitutional minds; they have been the focal points of reference for Chinese constitutional reform. The shift reflects both ideological and social changes since the Reform.

The South of Western constitutionalism: a map ahead of a journey

In starting from the simple question, ‘Why didn’t the field of constitutional studies ever generate a school of thought akin to TWAIL?’, this article seeks to sketch the contours, obstacles and promises of Southern constitutionalism. In confronting the intra-, meta-, and extra-disciplinary challenges to such a project, the article defines the ‘South’ of Southern constitutionalism, not the ‘South’ of the developed ‘North’, but rather the ‘South’ of the modernist hopes in – and the post-modernist disappointments with – the templates of Western constitutional imagination.

Provincial Autonomy, Sir Benegal Narsing Rau, and an Improbable Imagination of Constitutionalism in India, 1935–38

The Government of India Act, 1935, is often discussed for Britain's imperial intent in holding India to the empire and the Indian nationalists'—especially the Congress's—critique of the act. In this essay, by focusing on the prominent but little-known bureaucrat Sir Benegal Narsing Rau (1887–1953), Elangovan suggests that the moment of implementation of the act may have contained a third moment, a possibility of constitutional imagination that severely curtailed the political ambitions of both the imperial and the nationalist forces. He traces the possibilities and limits of this moment to foreground the often underappreciated tensions among colonialism, nationalism, and constitutionalism.

The Supreme Court in a Pluralistic World: Four Readings of a Reference

Dominant narratives about the institutional life of the Supreme Court of Canada pay too little attention to the empirical and theoretical insights of legal pluralism. They do not say enough about the Court’s place in a world in which the nature and experience of law are often understood without reference to state sources or institutions. As a result, the prevailing narratives do not speak to many social realities, fail to build on rich pluralist critiques of the Court’s jurisprudence, and disregard the aims and promise of doing legal theory. Relying on the Reference Re Senate Reform as a case study, this article points to shortcomings of contemporary understandings of the Court and proposes a way to overcome them. Part I presents four readings of the Supreme Court’s opinion in the Reference. Each focuses on a different dimension of the case—the doctrinal, the metaphorical, the institutional and the contextual. The readings are an invitation to notice the assumptions embedded in interpretations of the Reference and to explore the larger narratives of which they are a part. Part II takes up that invitation. It shows that the dominant narratives often reflect state-centric traditions of legal theory and impede inquiries into the Court’s place in a legally and institutionally plural world. It then presents a research agenda that maps a route toward filling this gap. Drawing on lessons of legal pluralism, the agenda encourages us to confront what we think we know—and what we tend to ignore—about the morality of the Court’s institutional design, about the Court’s place in Canada’s constitutional imagination, and about the significance of the Court in light of the myriad ways in which we access and pursue justice.

Authoritarian Liberalism in the European Constitutional Imagination: Second Time as Farce?

AbstractThe current crisis in Europe recalls the theory and practice of authoritarian liberalism, the idea that in order to protect economic liberalism and respect for fiscal discipline, representative democracy must be curtailed. This configuration was first identified by Hermann Heller in late Weimar as a response to the imperative to maintain the ideological separation of state and economy and presented by Karl Polanyi as conditioned by broader geo‐political pressure to maintain the gold standard in the inter‐war period. Authoritarian liberalism is now conditioned by conflicting imperatives to maintain the project of the single currency, respect ordo‐liberal concerns of moral hazard, and protect ‘militant democracy’ but only in one country. Does this reflect a broader geo‐political disequilibrium, due to tensions between market integration, constitutionalism and democracy?

The Constitutional Imagination

The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world‐making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.

Children of two logics: A way into Canadian constitutional culture

Through an analysis of the Canadian case, this article explores the tension between the universal and the particular in modern constitutional imagination, arguing that the points of friction between these two “logics” of constitutionalism are invaluable entry points into understanding the defining features of various constitutional cultures. The article argues that to understand Canadian constitutional culture, both at the structural level and also in the finer strokes surrounding given issues, one must appreciate that Canadians are the children of two constitutional logics: that of the local, the particular, and harmonious relations between diverse communities achieved through political compromise, and that of the universal, the metaphysical, and of a faith in the reason of legal principle. Examining issues of religious and cultural difference, judicial review, and indigenous rights, the article uses Canadian constitutionalism to illustrate that the points at which the march of the logic of universal reason meets resistance in the particular are key junctures for understanding a country’s constitutional culture.

The abiding presence of conscience: Criminal justice against the law and the modern constitutional imagination

In much contemporary constitutional thought the exercise of state power unbounded by or contrary to the law is nothing other than the failure of justice in the constitutional order. Yet it has not always been so. For a substantial period of common-law legal history the exercise of judgment despite the law was viewed as essential to seeing that justice was done. This article argues that attention to the imaginative architecture of our criminal justice system discloses the continued presence of the concept of the positive conscience-based exception as a dimension of modern constitutionalism. This article looks at jury nullification, the royal prerogative of mercy, and prosecutorial discretion as abiding expressions of the idea that law and reason alone are insufficient to give full expression to our sense of state justice. The persistence of these sites for conscience-based decisions unbounded by the law ought to trouble prevailing theories of modern constitutionalism based on the pre-eminence of a reason-driven proportionality in which all decisions must be contained and regulated by the reason of law. Without denying the dangers of the exception, this article suggests that the conscientious decision made against or in spite of the law remains an important component of the way in which we imagine criminal justice.

The Lochner Era and Comparative Constitutionalism

The Lochner era exerts a powerful hold over the American constitutional imagination as an example of the dangers of judicial review. Indeed, much of the edifice of the last fifty years of American constitutional jurisprudence can be viewed as a reaction to, a rejection of, and an attempt to avoid a repetition of, the Lochner era. I want to explore a related phenomenon that has received insufficient attention from students of comparative constitutionalism - namely, the role of the Lochner era in constitutional discourse outside of the United States. My central argument is that instead of serving as a positive model for drafting and construing constitutional provisions, the Lochner era serves as a negative guide to constitutionalism, with respect to both the framing of constitutions and constitutional interpretation. Lochner lurks as a shadow over liberal democratic constitutionalism, a constitutionalism which is framed in part by what it is not. In so doing, the Lochner era stands as perhaps the paradigmatic instance of an anti-model of comparative constitutional experience.