Constitutionalism, Identity, Difference, and Legitimacy

Theoretical Perspectives

Constitutionalism, Identity, Difference, and Legitimacy

Book Pages: 448 Illustrations: Published: October 1994

European Studies, Law > Legal Theory, Politics > Political Theory

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 society’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 collection’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, András Sajó, Frederick Schauer, Bernhard Schlink, M. M. Slaughter, Cass R. Sunstein, Ruti G. Teitel, Robin West



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Author/Editor Bios Back to Top

Michel Rosenfeld is Professor of Law at the Benjamin N. Cardozo School of Law at Yeshiva University and codirector of the Cardozo-New School Project on Constitutionalism. He is the author of Affirmative Action and Justice and coeditor of Deconstruction and the Possibility of Justice and Hegel and Legal Theory.

Table of Contents Back to Top

I. Introduction

Modern Constitutionalism as Interplay Between Identity and Diversity / Michael Rosenfeld

II. The Rebirth of Constitutionalism

A New Birth of Constitutionalism: Genetic Influences and Genetic Defects / Louis Henkin

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

Constitutional Bootstrapping in Philadelphia and Paris / Jon Elster

Revolution and Constitutionalism in America / David A. J. Richards

Constitutional Powermaking of the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution / Ulrich K. Preuss

Dilemmas Arising from the Power to Create Constitutions in Eastern Europe / Andrew Arato

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

German Constitutional Culture in Transition / Bernhard Schlink

Constitutional Identity / George P. Fletcher

Reactionary Constitutional Identity / Ruti G. Teitel

Toward a First Amendment Jurisprudence of Respect: A Comment on George Fletcher’s Constitutional Identity / Robin West

Hermeneutics and Constitutional Interpretation / Aharon Barak

The Constitutional Judge: Master or Slave of the Constitution? / Dominique Rousseau

A Philosophical Reconstruction of Judicial Review / Carlos Santiago Nino

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

Preferred Generations: A Paradox of Restoration Constitutions / Andras Sajo

Free Speech and the Cultural Contingency of Constitutional Categories / Frederick Schauer

The Multicultural Self: Questions of Subjectivity, Questions of Power / M. M. Slaughter

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

On Property and Constitutionalism / Cara R. Sunstein

Transitional Constitutions / Arthur J. Jacobson


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Paper ISBN: 978-0-8223-1516-2 / Cloth ISBN: 978-0-8223-1505-6
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