Tulis Jeffrey - The limits of constitutional democracy

THE LIMITS OF CONSTITUTIONAL DEMOCRACY

THE UNIVERSITY CENTER

FOR HUMAN VALUES SERIES

CHARLES R. BEITZ,
EDITOR

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The Limits of Constitutional Democracy
edited by Jeffrey K. Tulis and Stephen Macedo

Jeffrey K. Tulis and Stephen Macedo, editors

Copyright 2010 by Princeton University Press
Published by Princeton University Press, 41 William Street,
Princeton, New Jersey 08540
In the United Kingdom: Princeton University Press,
6 Oxford Street, Woodstock, Oxfordshire OX20 1TW
All Rights Reserved

Library of Congress Cataloging-in-Publication Data

The limits of constitutional democracy / edited by Jeffrey K. Tulis and Stephen Macedo.

p. cm. (University Center for Human Values series)

Includes index.

ISBN 978-0-691-14734-5 (hardcover : alk. paper) ISBN 978-0-691-14736-9 (pbk. : alk. paper)

1. DemocracyUnited States. 2. Constitutional historyUnited States.

3. Constitutional lawUnited States. I. Macedo, Stephen, 1957 II. Tulis, Jeffrey.

JK1726.L56 2010

321.8dc22

2010007375

British Library Cataloging-in-Publication Data is available

This book has been composed in Sabon

Printed on acid-free paper.

press.princeton.edu

Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

JEFFREY K. TULIS AND STEPHEN MACEDO

SOTIRIOS A. BARBER

JAMES E. FLEMING

GARY JEFFREY JACOBSOHN

The Architectonics of a Well-Founded Constitutional Order

WILLIAM F. HARRIS II

Executive Discretion and Congressional Legislation in the Civil War and World War I

BENJAMIN A. KLEINERMAN

JEFFREY K. TULIS

Embedding Emergency Government in Everyday Constitutional Life

KIM LANE SCHEPPELE

ADRIAN VERMEULE

MARIAH ZEISBERG

Rethinking Jacksons Concurrence in Youngstown v. Sawyer

JOSEPH M. BESSETTE

MARK E. BRANDON

JAN-WERNER MLLER

RAN HIRSCHL

ROGERS M. SMITH

DANIEL DEUDNEY

CHRISTOPHER L. EISGRUBER

JEFFREY K. TULIS AND STEPHEN MACEDO

OUR LARGE THEME IS FAILURE and success in constitution making, or the limits of constitutional democracy. The convergence of recent scholarly work in political science and law and political events throughout the world make this a timely project inside and outside of the academy. The number of new constitutional texts written in support of regime formation in the past thirty years is astonishing. The profusion of ideas and scholarship on constitution making also marks a milestone for social science, which had long neglected the study of laws and constitutions, and for legal studies, which recently added the study of constitutional design to its usual emphasis on constitutional interpretation and analyses of court doctrine.

This worldwide effort in political and academic arenas is, however, marked by a kind of ambivalence. On the one hand, there is considerable optimism that constitutional democracy represents a high point, if not a culmination, in the history of political life. The attractiveness of this political idea is so powerful that even countries such as Russia, whose long anticonstitutional pedigree continues to shape politics as it is experienced there, claim to be constitutional democracies. On the other hand, for all the attractiveness of the idea of constitutional democracy, establishing it in practice has proved difficult in many new regimes throughout the world, as the Russian case and the conflicts in Iraq and Afghanistan vividly illustrate. Constitutional democracy is at once an attractive idea and a daunting enterprise. There are limits to the possible establishment, to say nothing of the flourishing, of the idea of constitutional democracy.

This book takes up the concern about the limits of constitutional democracy by returning to its most basic questions: What is constitutional democracy? What does it mean for constitutional democracy to succeed or fail? To address issues so fundamental that they are often overlooked or taken for granted means that one can no longer assume the attractiveness of the idea of constitutionalism but must interrogate the meaning, limits, and appeal of the constitutional idea. Our usual way of talking about the limits of constitutional democracy is to discuss the variety of indigenous circumstancesethnic and tribal traditions, lack of commitment to a rule of law, religious strifethat hinder its development. For many who adopt this usual approach, constitutional democracy itself is unlimited in its appeal, but circumstances limit its establishment. In this book, we reverse the lens on these phenomena. Here we ask: What are the limits of constitutional democracy under minimally plausible circumstances for its establishment? What can we expect of constitutional democracy even under hospitable social circumstances? In a political order in which the citizenry is committed to constitutional democracy and its basic tenets, such as the rule of law properly conceived, what can constitutional democracy accomplish and what will it fail to accomplish? This is another way of asking what constitutional democracy is, what its theoretical boundaries are. Can this sort of regime adequately contend with emergencies? Can constitutional democracies conduct war effectively and still remain constitutional democracies? Can constitutional democracy cope with global interdependence?

This distinction between the conventional understanding of limits and the approach of this book is intentionally overdrawn. Studies of political and social circumstances inevitably run up against the question of the limits of constitutional democracy per se. And our analyses of constitutional democracy will inevitably raise questions about indigenous political and social circumstances or prerequisites. But in each case there is a distinct emphasis that colors the presentation. Our emphasis here is on the meaning and the limits of constitutional democracy itself.

This project was inspired by a remarkable recent study that offers an account of the creation, maintenance, and change of constitutional democracy. In Constitutional Democracy: Creating and Maintaining a Just Political Order, the late Walter F. Murphy developed a constitutional theory that was unusually comprehensive. Murphy showed how the problems of constitutional creation and maintenance could be illuminated by conjoining literatures and fields that rarely spoke to one another. He brought together the concerns of legal academics who study constitutions with political scientists who study law in one overarching account. It may be surprising to the general reader that these intellectual communities often work separately even though they study the same subject. To be sure, legal academics and political scientists usually raise different questions and often deploy different methods. Yet there is much to learn from each community, and Murphys book transcended that divide. Within political science, Murphy synthesized literatures from warring conceptual and methodological approaches and from diverse subfieldsranging from comparative politics to American political development, from theories of rational choice to studies of political behavior, and from political theory to political history. The result is a modern version of an Aristotelian idea that constitutional theory could be architectonic.