Constitutionalism, Identity, Difference, and Legitimacy

by Rosenfeld, Michel; Henkin, Louis (CON); Elster, Jon (CON); Preuss, Ulrich K. (CON)

• ISBN13: 9780822315162
• ISBN10: 0822315165
• Format: Paperback
• Copyright: 1994-10-01
• Publisher: Duke Univ Pr

Summary

Interest in constitutionalism and in the relationship among constitutions, national identity, and ethnic, religious, and cultural diversity has soared since the collapse of socialist regimes in Eastern Europe and the former Soviet Union. Since World War II there has also been a proliferation of new constitutions that differ in several essential respects from the American constitution. These two developments raise many important questions concerning the nature and scope of constitutionalism. The essays in this volume-written by an international group of prominent legal scholars, philosophers, political scientists, and social theorists-investigate the theoretical implications of recent constitutional developments and bring useful new perspectives to bear on some of the longest enduring questions confronting constitutionalism and constitutional theory. Sharing a common focus on the interplay between constitutional identity and individual or group diversity, these essays offer challenging new insights on subjects ranging from universal constitutional norms and whether constitutional norms can be successfully transplanted between cultures to a consideration of whether constitutionalism affords the means to reconcile a diverse societyrs"s quest for identity with its need to properly account for its differences; from the relation between constitution-making and revolution to that between collective interests and constitutional liberty and equality. This collectionrs"s broad scope and nontechnical style will engage scholars from the fields of political theory, social theory, international studies, and law.Contributors. Andrew Arato, Aharon Barak, Jon Elster, George P. Fletcher, Louis Henkin, Arthur J. Jacobson, Carlos Santiago Nino, Ulrich K. Preuss, David A. J. Richards, Michel Rosenfeld, Dominique Rousseau, Andraacute;s Sajoacute;, Frederick Schauer, Bernhard Schlink, M. M. Slaughter, Cass R. Sunstein, Ruti G. Teitel, Robin West

Table of Contents

Acknowledgments

Introduction

Modern Constitutionalism as Interplay Between Identity and Diversity

The Rebirth of Constitutionalism

A New Birth of Constitutionalism: Genetic Influences and Genetic Defects

Constitutionalism as Bridge Between Self and Other: The Politics and Legitimation of Constitution Making

Constitutional Bootstrapping in Philadelphia and Paris

Revolution and Constitutionalism in America

Constitutional Powermaking of the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution

Dilemmas Arising from the Power to Create Constitutions in Eastern Europe

The Identity of the Constitutional Subject and the Search for Authoritative Constitutional Meaning

German Constitutional Culture in Transition

Constitutional Identity

Reactionary Constitutional Identity

Toward a First Amendment Jurisprudence of Respect: A Comment on George Fletcher's Constitutional Identity

Hermeneutics and Constitutional Interpretation

The Constitutional Judge: Master or Slave of the Constitution?

A Philosophical Reconstruction of Judicial Review

Freedom, Equality, Individuals, Groups, and the Struggle Between Identity and Difference

Preferred Generations: A Paradox of Restoration Constitutions

Free Speech and the Cultural Contingency of Constitutional Categories

The Multicultural Self: Questions of Subjectivity, Questions of Power

On Drawing Constitutional Boundaries Between Self and Other: The Role of Property Rights

On Property and Constitutionalism

Transitional Constitutions

Index

Contributors

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