Online research in philosophy

Judicial activism is in serious, though undeserved, trouble. The current impasse over its role in constitutional discourse pits two opposed positions committed to different paradigms of judicial activism against one another. One side condemns activist judges for engaging in ultra vires adjudication by reading their idiosyncratic values into the Constitution. In this view, the charge of judicial activism has significant content and should be deployed to restrain renegade judges. The other side insists that calling someone a "judicial activist" has only emotive content and is used merely as an empty epithet denouncing judges with whom one disagrees. This Article redirects the controversy over judicial activism by distinguishing between two different, but interrelated, levels of constitutional discourse: the surface level and the deep level. The problem of judicial activism exists on the surface level of constitutional discourse and will remain irresolvable on that level. However, once we attend to the deep level of constitutional discourse, the role of judicial activism becomes clear. The presence of judicial activism on the surface structure of constitutional discourse reveals on the deep structure reasonable disagreement over the meaning of key constitutional provisions. The idea of "reasonable disagreement" is profitably explicated by combining what social theorist W.B. Gallie called "essentially contested concepts" with the political philosopher John Rawls' important categorization of "the burdens of judgment." These obstacles to rational consensus are endemic to a republican democracy. Consequently, reasonable disagreement over key constitutional provisions should not be regarded negatively; it is an inevitable and positive feature of any society championing liberty, equality, and pluralism. However, the inevitability and desirability of reasonable disagreement has institutional consequences for constitutional review. When reasonable disagreement is inevitable, legislatures, not courts should have the last word on constitutional meaning.

The constitutional subject : singular, plural or universal? -- The constitutional subject and the clash of self and other : on the uses of negation, metaphor, and metonymy -- Reinventing tradition through constitutional interpretation : the case of unenumerated rights in the United States -- Recasting and reorienting identity through constitution-making : the pivotal case of Spain's 1978 Constitution -- Constitutional models : shaping, nurturing, and guiding the constitutional subject -- Models of constitution making -- The constitutional subject and clashing visions of citizenship : can we be beyond what we are not? -- Can the constitutional subject go global? imagining a convergence of the universal, the particular, and the singular.

The new originalism is the latest de riguer theory of constitutional interpretation. No longer concerned with the majoritarianism or judicial restraint that were the hallmarks of Borkian/Bergerian originalism, the new originalists blithely dismiss precedent as having little, if any, constraining force and contend that the countermajoritarian difficulty is of little concern (though they are not alone in this regard). Parallel to this, there is little concern in the new originalist camp with judicial activism. Suffice it to say, it is not a modest theory. The thesis of this short paper is that perhaps that the new originalists suffer from a form of cognitive dissonance. That is to say, one wonders if the new originalists are not dealing in constitutional reality and are instead rationalizing a constitutional vision that does not square with history or the empirical evidence. It is well-documented that originalists on the bench are far from consistent in their application of originalism. Worse yet, when the justices (both liberal and conservative) utilize originalists arguments, ideological cherry-picking inevitably follows. More than that, the new originalists seem uniformly resistant to recognizing that constitutional law does not happen - and cannot happen - in the original public meaning vacuum they advocate. It is more profitable to understand decisions as the result of the historical and cultural zeitgeist the justices find themselves in. In fact, it is ironic that originalism itself is rather plainly a product of the (partial) triumph of the New Right political movement! If I am right about this, I think it is time for the new originalists to explain how their constitutional vision fits into our historical and empirical reality. If they cannot reconcile their theory with this, perhaps it is time that the new originalists admitted their dissonance and developed some intellectual modesty.

Few constitutional scholars would dispute the proposition that the Supreme Court and the president each possess the legal authority to exercise meaningful constitutional review. This idea is uncontroversial, in part, because constitutional review makes pragmatic sense in a nation that stresses systematic, structural restraints on government power. It is also uncontroversial because the Framers clearly planted the seeds of departmental constitutional review throughout the Founding documents. Despite their strong support for this sort of constitutional review, however, the Framers failed to articulate the manner in which each "department" (or "branch") should exercise its interpretive powers in relation to other branches. Rather than identify which branch's interpretations should receive the most constitutional deference, the Framers appeared to have permitted some degree of interpretive chaos, in which multiple branches could exercise the power of constitutional review, but no branch was formally or *informally* bound by the interpretations of others. To decipher the way in which the Framers believed that each department's interpretive powers would interrelate, this Note reexamines the indicia of constitutional review present within many Founding documents. It then argues that even though the Framers intended to establish a departmental interpretive system, they *also* intended to create an interpretive system that approximates the modern paradigm of deductive judicial supremacy. Though scholars often view judicial supremacy and departmentalism on mutually exclusive grounds, this Note argues that departmentalism that is filtered through an admittedly *soft* deductive judicial supremacy model best characterizes the Framers' conception of constitutional interpretation. In other words, not only are departmentalism and judicial supremacy intellectually compatible, but the Framers specifically intended to create a system that built upon both. In advocating an originalist defense of judicial supremacy, this Note aims to succeed where previous scholars have failed -- though, of course, it does so by advocating a softer form of judicial supremacy than many scholars ordinarily defend. To help explain its deductive model, in which Supreme Court decisions provide the most appropriate -- though not the only -- barometer of statutes' constitutionality, this Note also proposes a unique interpretive framework that approximates how the Framers believed a multi-layered system of heirarchical constitutional review should realistically apply.

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: That is unrealistic. That's not possible. That is pie in the sky. You are imagining castles in the air. Your suggestion is utopian. That isn't feasible. These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like constitutional possibility, ideal theory, and the feasible choice set mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality. Constitutional Possibilities proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools include: (a) the distinction between ideal and nonideal theory, (b) the notion of a constitutional second best, and (c) an introduction to possible-worlds semantics. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes wit

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.

The dominant strain of constitutional interpretation in Canada holds both that originalist theories of constitutional interpretation are not a part of Canadian constitutional doctrine, and that this is a very good thing. The Canadian courts (and academy) fully subscribe to a theory of living constitutional interpretation. While living constitutional interpretation in Canada is most often defined in terms of its incompatibility with originalist interpretation, there has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the New Originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada's rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of either theory.This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court's attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.

Since former President Soeharto was forced to resign in 1998, the Indonesian judiciary has been significantly reformed. A Judicial Commission was established to monitor its performance. A Constitutional Court was also created; one of its tasks is to decide disputes between state institutions and to review the constitutionality of statutes. This paper discusses the Constitutional Court case in which several Supreme Court judges alleged that the Constitution’s guarantee of judicial independence precluded the Judicial Commission from supervising the Supreme Court’s performance by critically analysing its decisions. The Constitutional Court accepted this argument, declaring that the Indonesian Constitution prohibited the Judicial Commission from performing this function. This paper discusses this case and its potential ramifications.

This chapter continues the institutional design process started in the previous, turning to four different types of modification in the system of constitutional review. I consider, in turn, the establishment of self-review panels in the legislative and executive branches of national governments (A), various mechanisms for inter-branch debate and decisional dispersal concerning constitutional elaboration (B), easing constitutional amendability requirements in overly obdurate systems (C), and finally establishing civic constitutional fora as replacements of traditional amendment procedures (D). In each case the proposals are motivated by the problems of judicial review I identified in the previous chapter, and their design is oriented to the fullest realization of the six assessment values I specified there. I assume throughout that some form of judicial review is extant in the political system, and for the most part I assume the concentrated system with specialized constitutional courts that I argued for there. Where something important hangs on the difference between a concentrated and diffuse system of constitutional courts for the design of these other mechanisms for constitutional elaboration, I take that up in the discussion.