Havasy, Macey, and Richardson on Against Political Theory in Constitutional Interpretation @Maceyjoshua @VandLRev @Harvard_Law @CornellLaw

Christopher Havasy, Harvard Law School; Harvard University, Department of Government, Joshua Macey, University of Chicago Law School, and Brian Richardson, Cornell Law School, are publishing Against Political Theory in Constitutional Interpretation in the Vanderbilt Law Review. Here is the abstract.

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.

Download the article from SSRN at the link.

Bezemek on Game of Thrones: An Essay in Politics Theory--The Men of the "Night's Watch" @UniGraz

Christoph Bezemek, University of Graz, Faculty of Law, Institute of Public Law and Political Science, has published Game of Thrones: An Essay in Political Theory - The Men of the 'Night's Watch'. Here is the abstract.

In 2019 I started to work on a small volume on the popular TV franchise 'Game of Thrones' from a political theory perspective; convinced that the show’s plot means not only to expose oneself to the thrills of a sex- and violence-laden fantasy adventure. Watching ‘Game of Thrones’, I thought, requires to do more than simply love or hate the protagonists as they fail or succeed in fighting, scheming and plotting their way to the ‘Iron Throne’. It requires to make political judgments about the agents and their actions. Thus: why not use the characters of the show, the challenges they face, the institutions that determine their fate and the social and legal norms that govern their conduct as a background for an essay in political theory? Save for one chapter, alas, the book has never been written. This chapter (originally intended to be the sixth) focuses on the 'Night's Watch'.

Download the article from SSRN at the link.

Pier Giuseppe Monateri, Political Sublime and the World Order (Hart Publishing, 2018) @hartpublishing

New from Hart Publishing:

Pier Giuseppe Monateri, Professor of Law, University of Torino, Dominus Mondi: Political Sublime and the World Order (2018).

Here from the publisher's website is a description of the book's contents.

This monograph makes a seminal contribution to existing literature on the importance of Roman law in the development of political thought in Europe. In particular it examines the expression 'dominus mundi', following it through the texts of the medieval jurists – the Glossators and Post-Glossators – up to the political thought of Hobbes. Understanding the concept of dominus mundi sheds light on how medieval jurists understood ownership of individual things; it is more complex than it might seem; and this book investigates these complexities. The book also offers important new insights into Thomas Hobbes, especially with regard to the end of dominus mundi and the replacement by Leviathan. Finally, the book has important relevance for contemporary political theory. With fading of political diversity Monateri argues “that the actual setting of globalisation represents the reappearance of the Ghost of the Dominus Mundi, a political refoulé – repressed – a reappearance of its sublime nature, and a struggle to restore its universal legitimacy, and take its place.” In making this argument, the book adds an important original vision to current debates in legal and political philosophy.

 

Daly on Rousseau's Constitutionalism: New From Hart Publishing @hartpublishing @eoinmauricedaly

Eoin Daly, Lecturer in Law, National University of Ireland, has published Rousseau's Constitutionalism (Hart Publishing, 2017). Here is a description of the book's contents.

Despite Rousseau's legacy to political thought, his contribution as a constitutional theorist is underexplored. Drawing on his constitutional designs for Corsica and Poland, this book argues that Rousseau's constitutionalism is defined chiefly by its socially directive character. His constitutional projects are not aimed, primarily, at coordinating and containing state power in the familiar liberal-democratic sense. Instead, they are aimed at fostering the social conditions in which a fuller sense of freedom – understood broadly as non-domination – can be realised across all social domains. And in turn, since Rousseau views domination as being deeply embedded in complex social practices, his constitutionalism is aimed at fostering a radical austerity – social, economic and cultural – as its foil. In locating Rousseau's constitutional projects within his social and political theory of servitude and domination, this book will challenge the predominant focus and orientation of contemporary republican theory. Leading republican thinkers have drawn on the historical republican canon to articulate a model of constitutionalism which is, on the whole, 'liberal' in focus and orientation. This book will argue that the more communitarian orientation of Rousseau's constitutionalism – that is, its socially-directive focus – stems from a sophisticated and compelling account of the sources of unfreedom in complex societies, sources which are ignored or downplayed by the neo-republican literature. Rousseau embraces a communitarian social politics as part of his constitutional project precisely because, pessimistically, he views domination as being deeply embedded in the social relations of the liberal order.

 

Political Authority and the Accommodation of Minorities

Alex Schwartz, Queen's University Belfast School of Law, has published Authority, Nationality, and Minorities at 28 Ratio Juris 354 (2015). Here is the abstract.

Prominent normative theories for accommodating minority national groups appeal to the value of national cultures and/or the psychology of group recognition. This article aims to show that an argument from political authority provides a better justification. Building on Joseph Raz's theory of authority, the article argues that members of minority national groups are disadvantaged in relation to their majority counterparts under standard democratic institutions; such institutions do not provide minority national groups with comparable access to the conditions for legitimate political authority. Constitutional arrangements for accommodating minority national groups — such as territorial self‐government or power‐sharing — are justified insofar as they might offset this disadvantage.

The full text is not available for free from SSRN.

Defining "The People" In Constitutional and Political Theory

Roman J. Hoyos, Southwestern Law School, has published Who are 'the People'?. Here is the abstract.

The question that animates this paper is one that is central to American constitutional history. Curiously, however, the concept “the people” has not been well-studied either by historians or constitutional and political theorists. This problem is not limited to scholarship, it is pervasive throughout our political culture. We constantly debate when the people have spoken, acted, decided, or willed without ever seriously asking who “the people” are. The popular turn in American constitutional theory (sometimes called “popular constitutionalism”) has brought attention back to the concept in a serious way. But as their critics have pointed out, the key concept at the center of the popular turn has gone largely unexamined. The aim of this paper is to examine “the people” as it has been conceptualized in the work of three major theorists of the popular turn — Bruce Ackerman, Akhil Amar, and Larry Kramer. Despite the claims of their critics, it is possible to put their works together in a way that unearths a working, if imprecise, concept of “the people.” This becomes clear when we filter their work through that of German legal and political theorist Carl Schmitt. A controversial figure because of his relationship to the Nazi Party in the early 1930s, Schmitt nevertheless developed a radical democratic theory. A number of Schmitt’s concepts can be seen in the work of Ackerman, Amar and Kramer, despite the fact that only Ackerman has demonstrated any awareness of Schmitt’s work. These concepts — the three moments of democracy, sovereignty, sovereign dictatorship, the constituent power, and acclamation — can help bring greater conceptual clarity to the popular turn. In particular, they help to account for the impression given by the popular turn that the people are seemingly everywhere and nowhere. One of Schmitt’s key interventions was to disaggregate the people in time. In other words, “the people” act differently depending upon the moment of democracy they occupy. In their sovereign moment, outside and above the constituted order, the people exercise their sovereign authority to create a constitution, usually through the mechanism of the sovereign dictatorship (i.e. a constituent assembly). In the second moment, the people act within the constituted order through their legal “competencies” assigned by a constitution, usually through elections and representation. In the third moment of democracy, the people return to a place outside the constituted order, but next to it rather than above. Here, the people rely upon their constituent power not to found a constitutional order but to develop new constitutional norms within it. They accomplish this through opinion creating activities that occur in public, which Schmitt terms “acclamation.” Although they have given some attention to the first moment, the bulk of the popular turn has focused on the people in their third moment. And in some ways they have developed and refined Schmitt’s idea of acclamation further than he did himself. Read through a Schmittian lens, the popular turn gives us a way to read constitutional history that accounts both for origins and change over time, and provides the foundation for an historical, and perhaps democratic, jurisprudence.

Download the article from SSRN at the link.

Machiavelli, Guicciardini, Democracy, and the Rule of Law

Cesare Pinelli, Sapienza University of Rome, has published Machiavelli, Guicciardini and the 'Governo Largo' at 28 Ratio Juris 267 (2015). Here is the abstract.

Niccolò Machiavelli's support for what he calls governo largo, or popular government, is usually contrasted with the diffidence towards it of Francesco Guicciardini, the Florentine aristocrat. The article argues that both these authors grounded their vision on Polybius' theory of “mixed government,” though adapting it in different directions. In examining this difference, the article reaches the conclusion that it concerns far less the degree of popular participation in political decision‐making and government than the value that Machiavelli and Guicciardini respectively ascribe to it in comparison with that of safety‐liberty (or legal certainty). In this respect, their theories may be viewed as anticipating the tensions between democracy and the rule of law, the co‐presence of which provides the essential foundation of the structure of present‐day constitutional democracies.

The full text is not available from SSRN.