Constitutionalism, Identity, Difference, and Legitimacy: by Michel Rosenfeld

By Michel Rosenfeld

Interest in constitutionalism and within the courting between constitutions, nationwide id, and ethnic, spiritual, and cultural variety has soared because the cave in of socialist regimes in jap Europe and the previous Soviet Union. on the grounds that international warfare II there has additionally been a proliferation of latest constitutions that range in different crucial respects from the yankee structure. those advancements increase many vital questions about the nature and scope of constitutionalism. The essays during this volume—written by means of a global workforce of in demand criminal students, philosophers, political scientists, and social theorists—investigate the theoretical implications of modern constitutional advancements and produce necessary new views to endure on many of the most lasting questions confronting constitutionalism and constitutional theory.
Sharing a standard specialise in the interaction among constitutional identification and person or team range, those essays provide difficult new insights on matters starting from common constitutional norms and no matter if constitutional norms should be effectively transplanted among cultures to a attention of even if constitutionalism provides the ability to reconcile a various society’s quest for id with its have to safely account for its variations; from the relation among constitution-making and revolution to that among collective pursuits and constitutional liberty and equality.
This collection’s vast scope and nontechnical kind will have interaction students from the fields of political concept, social concept, overseas experiences, and law.

Contributors. Andrew Arato, Aharon Barak, Jon Elster, George P. Fletcher, Louis Henkin, Arthur J. Jacobson, Carlos Santiago Nino, Ulrich okay. Preuss, David A. J. Richards, Michel Rosenfeld, Dominique Rousseau, András Sajó, Frederick Schauer, Bernhard Schlink, M. M. Slaughter, Cass R. Sunstein, Ruti G. Teitel, Robin West

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Whereas Schlink concentrates on how national identity contributes to the shaping of constitutional culture and to the overall structuring of the practice of constitutional interpretation, the contributions by George Fletcher, Ruti Teitel, and Robin West focus on the possible uses of identity as an interpretive tool in the search for authoritative constitutional meaning. Thus, Fletcher asserts that, in certain cases, it is legitimate to resolve a dispute in terms of the constitutional decision maker's constitutional identity.

The content of these norms, in tum, depends on the results of a process of democratic deliberation. Accordingly, we seem to have come full circle, with the ultimate meaning of the constitution depending somehow on democracy, thus apparently negating the legitimacy of judicial review. Nonetheless, by a further twist of the dialectic, it turns out that deliberative democracy itself depends for its survival on the operation of certain nondemocratic constraints designed to bolster the integrity of the democratic process and individual autonomy.

80 If implementation of private property rights would suffice to allow every person enough space to become self-sufficient and to ward off unwanted intrusions, then such property rights would safeguard the privacy interests that are currently protected by separate privacy rights covering both spacial and decisional privacy. J. 733 (1964). 82 See generally Symposium, The Public/Private Distinction, 130 U. PA. L. REV. 1289-1608 (1982). 34 Michel Rosenfeld of success. 83 The relationship between private property rights and modem constitutionalism strikes at the heart of the recent transitions to constitutional democracies in Eastern Europe.

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