Online research in philosophy

Constitutionalism is a typically modernist project in that it seeks to dictate social order by means of institutional design. This project, however, fails in two ways. Empirically, constitutionalism is confronted with the fact that constitutions have limited control over their social environment. Epistemologically, constitutionalism has great difficulty in finding a convincing foundational relation between abstract constitutional provisions and constitutional norms for concrete situations. On the basis of this poor record, it is hard to comprehend how constitutionalism remains such an influential factor in our polity. This article tries to explain our adherence to the philosophy of constitutional ordering by analysing its function in constitutional discourse.

This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The creation of a legitimate constitutional regime depends on a shared commitment to a particular and specialized form of language. Out of this simple observation, Schweber develops arguments about the characteristics of constitutional language, the necessary differences between constitutional language and the language of ordinary law or morality, as well as the authority of officials such as judges to engage in constitutional review of laws.

The article focuses on the definition of constitutional conflicts as moral dilemmas. It discusses the conception of tragic conflicts by which “loss” is a distinctive feature that identifies both moral and constitutional dilemmas. It also asserts the peculiarity of constitutional conflicts vis-à-vis moral dilemmas, as well as the possibility of legal solutions to constitutional conflicts.

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

This article considers the slow momentum toward Constitutional recognition of Indigenous peoples. It will consider the difficulty in changing the Australian Constitution and canvass why Indigenous Australians will need to be more specific in articulating the importance of Indigenous recognition in the operative provisions of the Constitution. Indigenous peoples know that our rights are inherent and that few jurisdictions actually require Indigenous peoples to justify their recognition. We also know that the evidence is strong from comparative common law jurisdictions that constitutional recognition does result in better outcomes in employment, health, education and women’s wellbeing. Yet given the inertia of the state in recognising Indigenous rights and because of the tenor of debate on Indigenous issues in Australia, we must establish the causal relationship between rights recognition and improving the wellbeing of Indigenous peoples’ lives. Therefore, this paper argues that in advocating for constitutional reform, we need to emphasise the connection between dealing with disadvantage - an urgent and immediate priority - and the ‘big picture’ in terms of addressing unfinished business between Indigenous peoples and the state. The Indigenous community is diverse enough in leadership and expertise and committed enough to work toward both outcomes.

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.

The notion that individuals have the right to define their identities, as fickle as those identities may be, is an important constitutional value that, among others, is embraced by our constitutional system. Through many different mechanisms we shape our identities and select how to project them. Those identity-formation tools include decisions we make regarding the way we choose to live our lives in fundamental matters. One important constitutional hook on which this value hangs, in U.S. and Puerto Rico Constitutional Law, is decisionmaking privacy. The article considers how identity-definition in Puerto Rico and United States constitutional law may be used to bolster legal and political claims in contexts such as intimate sexual relations, same-sex marriage and unconventional family relations. Because the Constitution of Puerto Rico is a result of the combination of different constitutional traditions, our right to privacy is infused with American and Continental notions of privacy and human dignity. It thus provides an ideal context to analyze decisionmaking privacy as a constitutional repository for identity-definition values.

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.