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Constitutional democracy is at once a flourishing idea filled with optimism and promise--and an enterprise fraught with limitations. Uncovering the reasons for this ambivalence, this book looks at the difficulties of constitutional democracy, and reexamines fundamental questions: What is constitutional democracy? When does it succeed or fail? Can constitutional democracies conduct war? Can they preserve their values and institutions while addressing new forms of global interdependence? The authors gathered here interrogate constitutional democracy's meaning in order to illuminate its future.
The book examines key themes--the issues of constitutional failure; the problem of emergency power and whether constitutions should be suspended when emergencies arise; the dilemmas faced when constitutions provide and restrict executive power during wartime; and whether constitutions can adapt to such globalization challenges as immigration, religious resurgence, and nuclear arms proliferation.
In addition to the editors, the contributors are Sotirios Barber, Joseph Bessette, Mark Brandon, Daniel Deudney, Christopher Eisgruber, James Fleming, William Harris II, Ran Hirschl, Gary Jacobsohn, Benjamin Kleinerman, Jan-Werner Müller, Kim Scheppele, Rogers Smith, Adrian Vermeule, and Mariah Zeisberg.
About the Author
Table of Contents
Introduction. Constitutional Boundaries by Jeffrey K. Tulis and Stephen Macedo 1
Part I: What Is Constitutional Failure? 11
Chapter 1: Constitutional Failure: Ultimately Attitudinal by Sotirios A. Barber 13
Chapter 2: Successful Failures of the American Constitution by James E. Fleming 29
Chapter 3: The Disharmonic Constitution by Gary Jeffrey Jacobsohn 47
Chapter 4: Constitution of Failure The Architectonics of a Well-Founded Constitutional Order by William F. Harris II 66
Part II: How Can Constitutional Democracy Contend with Emergency 89
Chapter 5: "In the Name of National Security" Executive Discretion and Congressional Legislation in the Civil War and World War I by Benjamin A. Kleinerman 91
Chapter 6: The Possibility of Constitutional Statesmanship by Jeffrey K. Tulis 112
Chapter 7: Exceptions That Prove the Rule Embedding Emergency Government in Everyday Constitutional Life by Kim Lane Scheppele 124
Part III: How Can Constitutional Democracy Contend with War? 155
Chapter 8: The Glorious Commander in Chief by Adrian Vermeule 157
Chapter 9: The Relational Conception of War Powers by Mariah Zeisberg 168
Chapter 10: Confronting War Rethinking Jackson's Concurrence in Youngstown v. Sawyer by Joseph M. Bessette 194
Chapter 11: War and Constitutional Change by Mark E. Brandon 217
Part IV: How Can Constitutional Democracy Contend with Globalization 237
Chapter 12: Three Constitutionalist Reponses to Globalization by Jan -Werner Muller 239
Chapter 13: Constitutionalism in a Theocratic World by Ran Hirschl 256
Chapter 14: Constitutional Democracies, Coercion, and Obligations to Include by Rogers M. Smith 280
Chapter 15: Omniviolence, Arms Control, and Limited Government by Daniel Deudney 297
Conclusion: Constitutional Engagement and Its Limits by Christopher L. Eisgruber 317
List of Contributors 329
What People are Saying About This
This unique collectionof original, thoughtful, and stimulating essays by many of the country's top constitutional scholarslooks into the nature of constitutional democracy and its capacity to achieve benign ends. The essays provide illuminating and provocative answers and reflect a wide variety of views on the meaning of constitutional success and failure.
Donald P. Kommers, Notre Dame Law School
Provocative and insightful, these essays offer a badly needed tutorial on how to think about the fate of constitutional democracy in the twenty-first century. The volume as a whole demonstrates that the best friends of constitutionalism are those who are unafraid to explore its limits.
Bryan Garsten, Yale University
I cannot remember reading another collection of essays that is so strong and compelling. There could hardly be a more important topic than the limits of constitutional democracy in this day and age, and I found every single essay extremely interesting.
Sanford Levinson, University of Texas Law School
In the face of emergency, war, and globalization, even the most enduring and successful constitution in history still confronts the possibility of constitutional failure. Focusing on this central theme, the authoritative essays contained in this book offer cogent arguments, a range of subjects, and a genuine diversity of opinion.
Harvey Mansfield, Harvard University
In this book, some of our most subtle thinkers about the constitutional order discuss its fundamental aspects. These challenging and provocative essays should lead us to think more deeply about problems of constitutionalism in a twenty-first century world of seemingly permanent war and emergency, executive power, religious conflict, and globalization.
Mark Tushnet, Harvard Law School