Constitutional Vision Research Articles

Buchanan at the American Founding: the constitutional political economy of a republic of equals and unequals

James M. Buchanan cited the American Founding as an important inspiration for his constitutional vision. Buchanan and the Founders shared a belief in the moral equality of persons and a conviction that social order could be built upon a nexus of contract and exchange. The early revolutionaries were inspired by the classical republican ideal of impartial government serving the public interest, but Buchanan and the later Founders did not believe that relying on political actors to pursue the common good would avert tyranny. Buchanan’s insistence on unanimous constitutional agreement highlights the fact that the Constitutional Convention did not obtain the consent of the black Americans who constituted close to one-fifth of the population, but to whom the Founders did not extend the principle of moral equality. Accordingly, Buchanan’s work leads to an appreciation of the Founders as an archetype of the constitutional mentality that he advocated throughout his work, but also to an understanding that the Founding fell short of his ideal of genuinely consensual politics. The practical import of Buchanan’s work therefore is to facilitate the evaluation of real-world politics—in this case, America’s Founding and subsequent political development—and to point the way towards future reforms informed by a constitutional mentality.

Supreme Court Precedent and the Politics of Repudiation

This is an invited essay that will appear in a book titled Law's Infamy, edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. Likewise, the knowledge that he might wind up on the wrong side of history in part explains the anguished quality of Justice Felix Frankfurter’s dissent in the coerced flag salute case, West Virginia State Board of Education v. Barnette, for he had not merely lost the argument over what a post-war liberal order should look like, but also saw the consensus represented in his earlier opinion on the issue collapse as his colleagues abandoned him for Robert Jackson’s rights-centered vision of justice. But what exactly renders a particular legal outcome, which surely begins as a good-faith effort to do the right thing, a despised precedent over time? Some judicial rulings are infamous because they are one day cast aside with great fanfare, as Bowers v. Hardwick was by Justice Anthony Kennedy in Lawrence v. Texas or the Dred Scott case was through consistent denunciation by abolitionists and a dramatic defeat for the Slave Power during the Civil War. But other precedents are treated disdainfully through a more nuanced process of shunning or erosion, so that they remain formally alive but shamble about, a vestige of their former selves—Korematsu v. United States, Roe v. Wade, and Miranda v. Arizona might fall into this category. This is true even though there may have been efforts by judges to rescue some aspect of each of these decisions. Whether renounced openly or surreptitiously, each of these precedents has been deeply marked by public condemnation. This essay investigates the politics of repudiation—the socio-legal dynamics by which losers to a contest over the meaning of the U.S. Constitution seek to castigate and de-legitimate a controversial outcome. It will ask what actions can spur the sense of moral outrage with a judicial ruling, and what components are necessary to transform a precedent into an exemplar of public regret. The politics of repudiation begins with the notion that every judicial ruling is a first draft, a sketch of legal and political values. Judges’ words are only fragments, composed by a single collection of influential individuals reading a legal text for a particular moment in time. What a judicial ruling means in the social world depends on what it becomes. Along these lines, the command to obey that is intrinsic to every ruling is satisfied through compliance by those who are immediate parties to the controversy; no one else is obliged to endorse the constitutional vision sketched by judges who presided over that dispute. The republican and federalist design features of our constitutional order therefore join with the necessary cultural processes upon which every legal system must depend to foster a broad range of efforts to either entrench or contest a particular vision of law. What matters more than the ideas contained in a judicial opinion, then, is what average citizens and elites do with that legal decision once it reenters the stream of democratic discourse and, if they disagree with it, what steps they take to inscribe a very different narrative about that decision in the public imagination. Much of this work of public repudiation is done through unglamorous politics: activism of civic groups and church organizations that educates citizens and the enactment of local policies, state laws, and other texts through which the people turn a legal ruling into an object of obloquy. National party dynamics can play a significant role by sharpening and broadening the politics of repudiation. For instance, by making opposition to Roe a central tenet of the party platform and political identity, the Republican party helped make Roe reviled among a generation of conservative lawyers who now hold a majority of seats on the Supreme Court. These efforts have put conservatives on the cusp of codifying a final victory should the Court overrule that decision.

Local Government: Constitutional Vision and Present Practice

Is it local government or local level unit of provincial and federal level governments? The constitution is still unclear. The constitution has not any provision of opposition party but it has executive, legislative and judiciary power allocation system of the organs of a government. To explore the vision and practice of local governance in Nepal, the study has been conducted. The methodology consists of analyzing primary and secondary sources. Primary data have been collected through field discussions with the stakeholders. Regarding the local governance various recommendations are presented in conclusion.

Homeless Advocacy and the Rhetorical Construction of the Civic Home

Homeless Advocacy and the Rhetorical Construction of the Civic Home

Reconstituting Canada: The enfranchisement and disenfranchisement of ‘Indians,’ circa 1837–1900

The constitutional history of Canada and First Nations is often told as the promise fulfilled of Aboriginal rights and treaties. I will challenge this story by recovering the story of the enfranchisement and disenfranchisement of ‘Indian’ subjects in the first three decades of Canadian Confederation. Far from forgotten actors in a foretold play, ‘Indian’ voters were crucial to determining the outcome of three closely contested federal elections and challenging settler ideas of the nascent Canadian nation. The question of the ‘Indian’ franchise was always embedded in competing constitutional visions for Confederation. The Canadian dream of transforming and assimilating Indigenous peoples would give way to a cynical idea of segregation under the permanent regime of the Indian Act. If the ‘Indian’ franchise was the apotheosis of assimilation, its revocation marked the start of racial segregation. I juxtapose these Canadian constitutional visions with two alternative possibilities. The Anishinaabe-dominated Grand General Council accepted the franchise as part of its vision of reconciling membership in both their treaty-recognized nations and the Canadian state. The Confederacy Council of the Six Nations, in contrast, rejected the franchise as an existential threat to Haudenosaunee self-rule mediated by a treaty relationship with the Canadian and imperial governments. Recovering the constitutional contests driving ‘Indian’ enfranchisement and disenfranchisement shows us how the successful imposition of a single vision of a white democracy silenced alternative visions of multinational coexistence. It also reminds us of the multiplicity of constitutional possibilities for a common future.

“Plant Yourselves on its Primal Granite”: Slavery, History and the Antebellum Roots of Originalism

This essay considers how the cultural authority of the constitutional Founding became legal authority in antebellum America. Examining a series of cases implicating the constitutional politics of slavery, it illustrates how legal professionals grasped the public power of constitutional origin stories. To produce meanings and legitimate rulings, lawyers and judges wrote and reproduced narratives about slavery at the Founding, converting ascriptions of original constitutional visions in formal constitutional law. This power derived from the ongoing popular construction of the Founding as a venerated and authoritative moment containing unwritten intentions, understandings, and promises binding upon subsequent generations. The essay argues that these developments belong to the deep history of originalism. By approaching originalism as a form of constitutional politics integrating public memory culture and legal reasoning, the essay locates the central public and juridical dynamics of originalism emerging in struggles over the constitutional identity of slavery.

Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution’s central elements were wholly or in critical part Morris’s work. Morris’s changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect “actual enumeration,” removed the constitutional text suggesting that slavery was just, and fought slavery’s spread. This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists—notably including fellow Committee member Alexander Hamilton—repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention’s agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of the Preamble (which they saw as a grant of substantive power), the Article I and Article II Vesting Clauses (which were contrasted to argue for expansive executive power), the Article III Vesting Clause (which they read to mandate the creation of lower federal courts), the Contracts Clause (which they read to cover public as well as private contracts), the Impeachment Clause (which they read to cover both nonofficial and official acts), and the “law of the land” provision (which they construed as a basis for judicial review) gives effect to Morris’s—and the Constitution’s—words.

Relevance of Constitutional Economics in India's Post-Neoliberal Era

Traditionally, constitutional economics prefers a constitutional constraint legitimized by rule of law over economic constraint when public policy decisions are made. However, pragmatic politics considers both these types of restraints as too feeble in the electoral games. Very often, ideologies drive the passions for political decision making. In this paper, we examine why electoral logic and economic logic may not be sufficient for the transformative vision of constitution in contexts where huge social inequalities prevail. We show this through demonstration of the interplay of Indian economic policies and constitutional values. We argue that in the build up towards neo-liberal era, constitutional values were systematically sidelined. However, the crisis of neo-liberalism forces us to look for alternative policy making approaches, and the Constitutional economics can provide some viable options.

Quando o gênero bate à porta do STF: a busca por um constitucionalismo feminista

Resumo Este artigo tematiza o papel do constitucionalismo feminista para a possibilidade da inclusão de uma perspectiva de gênero nas decisões judiciais do Supremo Tribunal Federal (STF). Nesse panorama, o constitucionalismo feminista permite compreender os discursos e os enunciados de gênero que são incorporados nos processos constituintes e nas constituições, resultando tanto na emancipação e no empoderamento jurídico ou em formas de subordinação. Pretende-se responder à seguinte pergunta: no contexto do constitucionalismo feminista, qual o papel do STF na construção e na inserção de uma perspectiva de gênero na jurisprudência brasileira? O objetivo deste trabalho é mapear decisões da Suprema Corte brasileira que desenhem uma prospectiva dessa teoria constitucionalista. O método de pesquisa utilizado foi o dedutivo. Os resultados alcançados indicam que, apesar dos muitos avanços dessa Corte na promoção e na inclusão de uma visão do constitucionalismo feminista na jurisprudência, existem muitos liames jurídicos e culturais que impossibilitam ou retardam o amadurecimento da emancipação e do empoderamento jurídico das mulheres.

The Concepts of Fundamental Laws and Constitution in the 18th Century Russia

In this article, we attempt to trace the semantic changes two key concepts of the Modern period - fundamental law and constitution underwent at the 18th century and investigates how these European concepts were adapted and used in the Russian political language. The concept of the constitution and fundamental laws in eighteenth-century political discourse had differing connotations: while the constitution was used mainly to describe the form of government, the concept of fundamental laws referred to historically developing legal traditions which have been adopted as norms of political law. The most radical vision of constitution in the 18th century went further than identify it with the fundamental law, demanding that the latter should enshrine the principles of civil rights and liberties of the Nation, and the legal guarantees thereof. However, this radical view, arising at the end of the century, was far from universal, and the discussion around various understandings of this concept was still to continue for many years.

Equality of Opportunity, Group Subordination, and the Directive Principles: State of Kerala vs N.M. Thomas

The history of the Supreme Court’s Article 16 jurisprudence – or, as it is commonly identified, its “reservation jurisprudence” – is the history of a struggle between two competing visions of equality. In 1975, the Court decisively embraced one vision, and rejected the other. More than forty years after, however, the transformative character of that judgment has yet to be articulated. That is the task of this essay. I shall begin with a survey of a few of the Supreme Court’s initial judgments on Articles 15 and 16. In its first two decades, the Court held that Articles 15(1) (non-discrimination) and 16(1) (equality of opportunity) pulled in opposite directions from Articles 15(4) and 16(4) (that allowed class-based affirmative action). The latter were constitutionally-mandated “exceptions” to the equality code, which had to be interpreted narrowly and in a limited fashion (I). In State of Kerala vs N.M. Thomas, however, a closely divided Supreme Court reversed that view. In their complementary majority opinions, Justices Mathew and Krishna Iyer advanced a vision of equality according to which individual disabilities were embedded in class identity, and consequently, within a set of social hierarchies that the Constitution’s equality code was created to surmount (II). After discussing the judgment(s) in N.M. Thomas, I will articulate and defend the transformative understanding of equality that emerges out of a combined reading of the majority opinions. According to this understanding, the group-oriented reservation provisions under Articles 15(4) and 16(4) were not exceptions to, but facets of, the individual non-discrimination and equality guarantees under Articles 15(1) and 16(1). How did the Court reconcile this dichotomy between the individual and the group? It did so through the insight that while the Constitution remained committed to the individual, the historical and social character of inequality in India was constituted by group membership; or, in other words, for an individual, “differential access to life chances corresponded in large measure to membership in different communities.” To take community membership into account, therefore, was not to depart from the principle of individual equality, but to abide by it in its deepest sense. This, I will argue, was consistent with the political understanding of inequality that led up to, and ultimately culminated in, the framing of the Constitution. (III) N.M. Thomas was transformative in a second, important way: it was the first judgment to articulate the role of Part IV of the Constitution – the Directive Principles of State Policy – as a system of framework values that gave life to the abstract concepts outlined in the fundamental rights chapter. In the concurring opinions of Justices Mathew and Krishna Iyer, it was the Directive Principles that provided the justification for why the constitutional vision of equality was sensitive to group disadvantage. It is this reasoning, I will argue, that – for the first time – accurately captured the relationship between the enforceable fundamental rights of Part III, and the non-enforceable constitutional values of Part IV. (IV) I will conclude by arguing that the vision of equality articulated in N.M. Thomas was not merely of academic or philosophical interest; but rather, had – and continues to have – the potential to transform how the law addresses subtle and often hidden social hierarchies. (V).

The History of the Integration Through Law Project: Creating the Academic Expression of a Constitutional Legal Vision for Europe

The history of the “Integration through Law” (ITL) project, conducted by Mauro Cappelletti at the European University Institute in the late 1970s and 1980s, unfolded in this Article, provides clarity on the nature of the power-knowledge nexus in European law, as it pulls the curtain on the close collaboration between academia and the Community institutions in the ITL project. It demonstrates that the ITL was an academic expression of a constitutional vision, which had flourished in the Commission and the European Court of Justice (ECJ) for decades, but had never truly been adopted in the emerging academic discipline of European law. Alongside the studies of Eric Stein, the ITL project was the impetus behind the constitutional discourse in academia turning into a paradigm in the 1980s, but the ITL project had an unparalleled impact. Firstly, because of the scholarly environment at the European University Institute (EUI), and secondly, because of the notion of “Integration through Law,” which has proved to be an extremely powerful concept, providing a field of scholars, law professors, civil servants from the Community institutions, and ECJ judges with a flattering self-image and a raison d'être expressed in three little words.

The Politics of Global Constitutionalism

Abstract The article argues that no understanding of global constitutionalism will be complete without a thorough discussion of its political dimension. The current state of scholarship on global constitutionalism is dominated by discussions of legal elements. However, any theory of global constitutionalism has an underlying vision of the political. Without discussing this underlying vision of the political global constitutionalism will remain incomplete. In particular the article demonstrates that the contemporary debates on global constitutionalism are plagued by a contradiction between its aims and its underlying vision of the political. Thus, global constitutionalism postulates individuals as central units of its concern. However, by maintaining states as central actors although in a changed form and with fewer powers global constitutionalism unwittingly subscribes to a vision of the political anchored in the state form and based on the exclusion/inclusion dynamic. This vision of the political is most clearly articulated by Carl Schmitt. The discussion of his view of the political demonstrates that the political based on the state form makes the project of global constitutionalism impossible. The only way forward is an open discussion of different visions of the political and a search for a more adequate vision of the political able to further the aims of global constitutionalism and its focus on individuals. The article discusses one of these alternative visions of the political, namely the concept of the coming politics and coming community as articulated by Giorgio Agamben. It demonstrates how with this vision of the political the project of global constitutionalism can conceive of a political community fully dedicated to the singularities of each individual human being without creating divisions. The article concludes that in order for global constitutionalism to continue as a viable project, an open and explicit discussion of the political is called for.

Sovereign Democratic Transformation in Ecuador (2007-2016)

Between 1981 and 2007, Ecuador experienced neoliberal reforms coupled with an elite form of democracy. These led to slow growth, upwards redistribution, and political and economic instability. Since then, Ecuador adopted a Citizens’ Revolution to counteract these economic and political forms of domination. This paper advances a few elements of the theoretical understanding of democratic justice inspired by the constitutional vision of Buen Vivir, and their policy applications in reconfiguring the political institutions that shape the state and its international relations. The application in the Citizens’ Revolution movement and historical phase has helped advance the democratization of the Constitution, the Executive, the Legislative, the Judicial system, political rights, the right to life, freedom of expression, national natural resources and investments, external public debt, as well as social rights and the welfare state.

Discretionary Powers of the Governor: Constitutional Vision and Observed Realities

Right from the adoption of the Indian Constitution a hot debate is going on regarding discretionary power of governors. The Office of the Governor, not being an elected constitutional functionary, has been in the eye of a storm. Our Constitution makers wanted a governor who would act as a friend and sagacious advisor of the Council of Ministers. He should be a person who is expected to be above party and politics. But very soon these pious hopes were shattered. Arguments and counter-arguments started generating more heat but less light after 1967 because most of the state legislatures were captured by the non-Congress parties. The governors came to be seen or suspected as the agents of the union government. The present article is a brief narration of governor’s discretionary powers as our founding fathers hoped and how governors have actually behaved with such powers just to please the leadership of the party in power at the centre contrary to the vision of the makers.

India’s role in the Human Rights Council: Is there a constitutional vision in its foreign policy?

This article seeks to understand the nature of India’s interventions in the Human Rights Council spanning the areas of civil and political rights, country specific resolutions, socio-economic rights and emerging issues such as sexual orientation and gender identity. India’s voting at the Human Rights Council indicates a preference for either abstaining or diluting human rights concerns when it comes to civil and political rights. With respect to country specific resolutions India has been either hostile or indifferent, except in the case of Sri Lanka and Palestine. With respect to socio-economic rights, India has been more proactive especially with respect to resolutions on access to medicine and human rights and trans-national corporations. India’s overall record at the Human Rights Council indicates a country which does not seem to think that Constitutional values which govern the country internally need to be promoted internationally. Very often there is a marked divergence between the self image of India as the world’s largest democracy and the way India votes in the Human Rights Council.

Democracy, Translucidity and Accountability: The Eurozone vs. The Democratic Right to Know

Democracy, Translucidity and Accountability: The Eurozone vs. The Democratic Right to Know

The Crisis of Law and the European Crises: From the Social and Democratic Rechtsstaat to the Consolidating State of (Pseudo‐)technocratic Governance

Europe has been badly hit by several overlapping crises. This article explores how they were triggered by and, in turn, aggravated a structural crisis of European law. It spells out the concrete implications of ‘austerity’ in constitutional terms. First, the crises have led to ad hoc decisions and structural reforms honouring European constitutional norms in the breach. Secondly, the governance of the crises has facilitated the radicalization of the ongoing mutation of European constitutional law, in particular, changes to the structural and substantive constitutional law which have locked in a constitutional vision of sorts at odds with the regulatory ideal of the Social and Democratic Rechtsstaat. Thirdly, the very nature of European law, and in particular its role as the grammar of democratic law, has been endangered: European law is in the process of becoming an instrument of authoritarian governance.

Sun Yat-Sen's Constitutionalism

In 2013, China witnessed the controversial debate on constitutionalism (xianzheng) which lasted for months. In China, the concept of xianzheng is tractable back to Sun Yat-sen’s constitutional doctrine. Anti-constitutionalists in the 2013 debate understand constitutionalism as analogous to western liberal constitutionalism and argue that Sun Yat-sen’s conception of constitutionalism reflected western “bourgeois” thinking. The xianzheng debate in China suggests the necessity of a revisit of Sun’s constitutionalism. This article argues that Sun Yat-sen integrates elements of western modern constitutionalism (written constitution, popular sovereignty, democratic government, and the separation of the legislative, executive, and judicial powers) with elements of Confucianism (ren or humanity, minben or people as basis and elitism) to generate his distinctive vision of mixed constitutionalism. The implication of this study for academic inquiry is to consider whether to develop a normative theory of mixed constitutionalism in contemporary East Asia.

The Moral Unity of Public Law

Instead of a public law fragmented into discrete departments, we should envisage a unified scheme of constitutional rights and legal standards, expressing a coherent moral theory of the rule of law. That moral theory underpins all legitimate legal orders, properly respectful of human dignity; and common law adjudication is best understood as the working out, according to context, of the practical implications of the theory. An initial focus on more local legal tradition ultimately leads to a broader inquiry about the true demands of human rights and civil liberties, offering the prospect of a larger vision of democratic constitutionalism. While Jeremy Waldron has doubted the similarity between legal analysis and moral reasoning – rejecting an analogy with Rawlsian reflective equilibrium – his view may be contested. A common law judge who attempts to reason morally in the name of the whole society, in the manner suggested by Ronald Dworkin’s theory of integrity, must take account of those legal texts and precedents that political morality makes pertinent. Legal reasoning is simply moral reasoning, attentive to historical and political context.