Indiana Law Journal 83:307-337 (2008)
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 with the problem of false constitutional necessity.
|Keywords||Constitution Constitutional Theory Possibility Feasible Choice Set Path Dependency Feasibility Possible Worlds|
|Categories||categorize this paper)|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community.Michel Rosenfeld - 2010 - Routledge.
Constitutional Conflicts, Moral Dilemmas, and Legal Solutions.Silvina Alvarez - 2011 - Ratio Juris 24 (1):59-74.
Interpretive and Noninterpretive Constitutional Theory:The Constitution, the Courts, and Human Rights. Michael J. Perry; Constitutional Fate: Theory of the Constitution. Philip Bobbitt. [REVIEW]Arval A. Morris - 1984 - Ethics 94 (3):501-.
Constitutional Conventions, Commissions and Other Constitutional Reform Mechanisms.Anne Twomey - manuscript
Added to index2009-01-28
Total downloads23 ( #217,445 of 2,163,666 )
Recent downloads (6 months)1 ( #348,043 of 2,163,666 )
How can I increase my downloads?