Reclaiming Constitutionalism

Reclaiming Constitutionalism articulates an argument for why the constitutional phenomenon remains attached to the state – despite the recent advent of theories of global constitutionalism. Drawing from the idea that constitutionalism historically sought to build social consensus, this book argues that the primary aim of constitutionalism is to create social peace and to shield, rather than to limit, the power of political elites in any given state. Implicit in the effort to preserve social peace is the fundamentally important acknowledgement of social conflict. Constitutionalism seeks to offer a balance between opposing social forces. However, this balancing process can sometimes ignite, rather than appease, social conflict. Constitutionalism may thus further a project of social struggles and emancipation, for it incorporates within its very nucleus the potential for an agonistic version of democracy. In light of the connection between social conflict and constitutionalism, this book explores the conditions for and locations of the former. From the state and the EU to the global level, it considers the role of citizenship, national identities, democracy, power, and ideology, in order to conclude that the state is the only site that satisfies the prerequisites for social conflict. Reclaiming constitutionalism means building a discourse that opens up an emancipatory potential; a potential that, under current conditions, cannot be fulfilled beyond the borders of the state.

When political debates devolve, as they often do these days, into a contest between big-government progressivism and natural rights individualism, Americans tend to appeal to the “self-evident” truths inscribed in the Declaration of Independence and the Constitution. But Peter Lawler and Richard Reinsch remind us that these truths understood in the abstract are untethered from a prior, unwritten constitution presupposed by the Framers—one found in culture, customs, traditions, experiences, and beliefs. A Constitution in Full is Lawler and Reinsch’s attempt to return this critical context to US constitutionalism—to recover a political sense of individualism in relation to country, family, religious community, and nature. Power, the authors suggest, is a public trust, not a form of obedience to either majoritarian suppression of particular liberties or the endless rights-claims lodged by autonomous individuals against society. Instead, power is ordered to the demands of a shared political enterprise that emerges from man’s social nature. Building on political insights from Alexis de Tocqueville, Orestes Brownson, John Courtney Murray, and others Lawler and Reinsch seek to restore the relational person—the individual grounded in family, work, faith, and community—to a central place in our understanding of republican constitutionalism. Their work promotes the ongoing development of constitutional self-government rooted in our historical, legal, and religious foundations. The shared middle-class values that once united almost all Americans as well as any confidence in democratic deliberation or political liberty are rapidly atrophying. This book aims to rebuild this confidence by helping us think seriously about the complex interplay between political and economic liberties and the relational life of creatures and citizens.

Indigenous traditions can be uplifting, positive, and liberating forces when they are connected to living systems of thought and practice. Problems arise when they are treated as timeless models of unchanging truth that require unwavering deference and unquestioning obedience. Freedom and Indigenous Constitutionalism celebrates the emancipatory potential of Indigenous traditions, considers their value as the basis for good laws and good lives, and critiques the failure of Canadian constitutional traditions to recognize their significance. Demonstrating how Canada’s constitutional structures marginalize Indigenous peoples’ ability to exercise power in the real world, John Borrows uses Ojibwe law, stories, and principles to suggest alternative ways in which Indigenous peoples can work to enhance freedom. Among the stimulating issues he approaches are the democratic potential of civil disobedience, the hazards of applying originalism rather than living tree jurisprudence in the interpretation of Aboriginal and treaty rights, American legislative actions that could also animate Indigenous self-determination in Canada, and the opportunity for Indigenous governmental action to address violence against women.

For 150 years, Canada's constitutional order has been both flexible and durable, ensuring peace, order, and good government while protecting the absolute rights at the core of the rule of law. In this era of transnational terrorism and proliferating emergency powers, it is essential to revisit how and why our constitutional order developed particular limits on the government's powers, which remain in force despite war, rebellion, and insurrection. Seven Absolute Rights surveys the historical foundations of Canada's rule of law and the ways they reinforce the Constitution. Ryan Alford provides a gripping narrative of constitutional history, beginning with the medieval and early modern context of Magna Carta, the Petition of Right, and the constitutional settlement of the Glorious Revolution. His reconstruction ends with a detailed examination of two pre-Confederation crises: the rebellions of 1837–38 and the riots of 1849, which, as he demonstrates, provide the missing constitutionalist context to the framing of the British North America Act. Through this accessible exploration of key events and legal precedents, Alford offers a distinct perspective on the substantive principles of the rule of law embedded in Canada's Constitution. In bringing constitutional history to life, Seven Absolute Rights reveals the history and meaning of these long-forgotten protections and shows why they remain fundamental to our freedom in the twenty-first century.

Based on a reconstruction of earlier liberal conceptions of liberty (the political theories of John Locke & J.S. Mill), this book stresses the empowering nature of liberal freedom and explains why such a concept of liberty better addresses two key contemporary challenges in liberal theory and praxis: wealth redistribution and multiculturalism.

Despite Rousseau's legacy to political thought, his contribution as a constitutional theorist is underexplored. Drawing on his constitutional designs for Corsica and Poland, this book argues that Rousseau's constitutionalism is defined chiefly by its socially directive character. His constitutional projects are not aimed, primarily, at coordinating and containing state power in the familiar liberal-democratic sense. Instead, they are aimed at fostering the social conditions in which a fuller sense of freedom – understood broadly as non-domination – can be realised across all social domains. And in turn, since Rousseau views domination as being deeply embedded in complex social practices, his constitutionalism is aimed at fostering a radical austerity – social, economic and cultural – as its foil. In locating Rousseau's constitutional projects within his social and political theory of servitude and domination, this book will challenge the predominant focus and orientation of contemporary republican theory. Leading republican thinkers have drawn on the historical republican canon to articulate a model of constitutionalism which is, on the whole, 'liberal' in focus and orientation. This book will argue that the more communitarian orientation of Rousseau's constitutionalism – that is, its socially-directive focus – stems from a sophisticated and compelling account of the sources of unfreedom in complex societies, sources which are ignored or downplayed by the neo-republican literature. Rousseau embraces a communitarian social politics as part of his constitutional project precisely because, pessimistically, he views domination as being deeply embedded in the social relations of the liberal order.

In this incisive and thought-provoking book, Francois Venter illuminates the issues arising from the fact that the current language of constitutional law is strongly premised on a particular worldview rooted in the history of the states around the North Atlantic Ocean. Highlighting how this terminological hegemony is being challenged from various directions, Venter explores the problem that all constitutional comparatists face: that they all must use the same words to express different meanings.

This book explores convergences of legal doctrine despite jurisdictional, cultural and political barriers, as well as divergences due to such barriers, examining topics that are of vital importance to contemporary legal scholars. Written by leading experts from all continents, its 26 chapters present a comparative analysis of cutting-edge legal issues of the 21st century. While each of the countries covered stands alone as a sovereign state, in a technologically advanced world their disparate systems nonetheless show comparable strategies in dealing with complex legal issues. Several of the chapters show how, in addition to state normative production and state adjudication, a growing panoply of non-state instruments and non-state adjudication are becoming more and more central to the legal field. This book is a key addition to the library of any scholar wanting to keep abreast of the major trends in contemporary law. Representing the current state of law in a vast range of areas, it covers each topic from a comparative perspective. Cet ouvrage, en examinant des sujets d'une importance vitale pour les juristes contemporains, traite des convergences de la doctrine juridique malgré les barrières juridictionnelles, culturelles et politiques ainsi que des divergences dues à ces barrières. Écrits par d'éminents universitaires de tous les continents, ses 26 chapitres présentent une analyse comparative de sujets juridiques majeurs du 21e siècle. Dans un monde technologiquement avancé, bien que chaque pays analysé dans cet ouvrage demeure autonome en tant qu'État souverain, l’ensemble des systèmes disparates présente néanmoins des stratégies comparables pour traiter des questions juridiques complexes. En outre, plusieurs chapitres montrent comment, en plus de la production normative et de la résolution des différends étatiques, la panoplie croissante de différents types d'instruments non étatiques et de résolution non étatique des différends devient de plus en plus centrale dans la sphère juridique. Cet ouvrage est un ajout essentiel à la bibliothèque de tout universitaire souhaitant se tenir au courant des principales tendances du droit contemporain. Il couvre un vaste domaine de sujets traités d'un point de vue comparatif et représente l'état actuel du droit dans chaque domaine.