ABSTRACTAgainst critics of capacious notions of democratic rule by “the many,” Hélène Landemore vigorously defends what she calls “democratic reason” because of the epistemic value of active deliberation by diverse groups of people. Deliberation is necessary to overcome isolated reasoning, and diversity is necessary to overcome the potential echo chamber created by conversations in a group of “the best and the brightest.” The best way to create optimal democratic rule may involve greater reliance on random selection of decision-making bodies than (...) on standard-model elections. (shrink)

Torture has become the subject of intense debate in recent years. One facet of that debate is whether there are any circumstances during which it might be an appropriate response by a respectable government. One might wonder precisely why torture receives so much more attention than, say, the "collateral damage" that is an inevitable aspect of contemporary warfare. But the debate also involves what counts as "torture," as distinguished from "cruel, inhuman, and degrading" methods of interrogation or even "coercive but (...) acceptable" methods. This article argues that we sometimes overemphasize the significance of particular acts — i.e., x either is or is not torture — as against the importance of the phenomenology of torture, which involves creating a structure of complete domination and, therefore, complete vulnerability. This is similar to the phoenomenology of slavery. Indeed, in this 150th year since the Supreme Court's decision in the Dred Scott case, it is important to contemplate the full meaning of Chief Justice Taney's declaration that blacks had "no rights" that whites were "bound to respect." Can a liberal political order ever carve out a set of persons — such as suspected terrorists — who indeed have "no rights" that the state is obligated to respect? If the answer is no, then what are the implications for the process by which the United States, presumably a liberal political order, conducts interrogations even of those suspected of being "the worst of the worst"? (shrink)

Constitutions serve (at least) two central functions. One is to settle certain controversies by offering a definitive solution, such as adoption of a presidential or parliamentary system, a one-house or two-house legislature, or guaranteeing a certain term of years to judicial appointees. Not surprisingly, there is rarely litigation about such solutions, even if one finds them troublesome; instead, one can suggest amending the constitution or even replacing it. A second function is precisely to engender litigation by addressing certain issues—very often (...) involving rights—that don't lend themselves to the kinds of definitive textual solutions similar to those involving structural features of a polity. If the first constitution can be described as a “constitution of settlement,” this second constitution is a “constitution of legal conversation” inasmuch as lawyers constantly dispute the meanings to be assigned such terms as “equal protection,” “human dignity,” and the like. But how does this apply to the preambles commonly, though not always, found in constitutions? Preambles often claim to evoke what binds together the society for whom the constitution is being drafted—religion, ethnicity, histories, languages, or commitments to norms, including universalistic ones. But to what extent are such claims of unity attempts by political elites to marginalize sectors of the society that do not in fact share the attributes in question? In any event, there is nothing “innocent” about constitutional preambles, and they are well worth taking seriously whether or not they are useful to lawyers engaged in litigation. (shrink)

Torture has become the subject of intense debate in recent years. One facet of that debate is whether there are any circumstances during which it might be an appropriate response by a respectable government. One might wonder precisely why torture receives so much more attention than, say, the "collateral damage" that is an inevitable aspect of contemporary warfare. But the debate also involves what counts as "torture," as distinguished from "cruel, inhuman, and degrading" methods of interrogation or even "coercive but (...) acceptable" methods. This article argues that we sometimes overemphasize the significance of particular acts — i.e., x either is or is not torture — as against the importance of the phenomenology of torture, which involves creating a structure of complete domination and, therefore, complete vulnerability. This is similar to the phoenomenology of slavery. Indeed, in this 150th year since the Supreme Court's decision in the Dred Scott case, it is important to contemplate the full meaning of Chief Justice Taney's declaration that blacks had "no rights" that whites were "bound to respect." Can a liberal political order ever carve out a set of persons — such as suspected terrorists — who indeed have "no rights" that the state is obligated to respect? If the answer is no, then what are the implications for the process by which the United States, presumably a liberal political order, conducts interrogations even of those suspected of being "the worst of the worst"? (shrink)

Part I. Naturalistic ethics -- Part II. Law and behavioral morality -- Part III. Biopolitical science.

_From one of America’s most distinguished constitutional scholars, an intriguing exploration of America’s most famous political tract and its relevance to today’s politics_ In _An Argument Open to All,_ renowned legal scholar Sanford Levinson takes a novel approach to what is perhaps America’s most famous political tract. Rather than concern himself with the authors as historical figures, or how _The Federalist_ helps us understand the original intent of the framers of the Constitution, Levinson examines each essay for the _political_ wisdom (...) it can offer us today. In eighty-five short essays, each keyed to a different essay in _The Federalist,_ he considers such questions as whether present generations can rethink their constitutional arrangements; how much effort we should exert to preserve America’s traditional culture; and whether _The Federalist_’s arguments even suggest the desirability of world government. (shrink)

Carl Schmitt, whatever his clear deficiencies as a human being and excesses in his overall thought, is, by any objective measure, one of the leading jurisprudential figures of the 20th century. And...

This chapter contains sections titled: References.