From Words to Worlds
Exploring Constitutional Functionality
Publication Year: 2009
Published by: The Johns Hopkins University Press
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One of the notable highlights of the walking tour of Montpelier, James Madison’s stately home nestled in the foothills of Virginia’s Blue Ridge Mountains, occurs when one enters a small room on the second floor. It is here, we are told, that the principal architect of the American Constitution prepared for the Philadelphia Convention. Surrounded by books, newspapers, letters of correspondence, ...
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Constitutions matter. That simple statement—that constitutions really matter— hardly seems surprising until one honestly reflects on the state of constitutionalism around the world. To put it mildly, constitutional regimes are at different stages of development and are having differing degrees of success with their fundamental law. Some, like Canada and Iraq, are governed by basic texts ...
1. Constitutional Order
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An exploration of constitutional functionality logically begins with an understanding of constitutions. Almost every regime around the world boasts a constitution. From the most tolerant to the most oppressive, polities are consistently able to point to some form of constitutional documentation as their own. It is true that not all political regimes adhere to the principle of constitutionalism, ...
2. Constitutional Transformation
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It seems logical that any discussion of constitutional functionality should properly start at the chronological beginning, with the exploration of the inevitable transition and rebirth that accompanies constitutional foundings.1 Indeed, constitutional foundings are curious and complicated moments.2 For some polities the founding moment as well as the statesmen and stateswomen who participate ...
3. Constitutional Aspiration
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Robert Cover once remarked that constitutions are “the projection of an imagined future upon reality.”1 Like many contemporary constitutional theorists, he understood that the fundamental charter of a nation is far more nuanced than can be accurately captured by a definition centered predominantly on the text’s procedural clauses or its architectural features. The document encapsulates ...
4. Constitutional Design
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To this point most of our discussion has focused on a constitution’s literal introduction (preamble) and chronological beginning (founding). We have explored the process of constitutional transformation and the practice of embedding specific aspirations within the constitutional text. It is not yet time to abandon completely our examination of constitutional beginnings, since the legacy of ...
5. Constitutional Conflict
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Constitutions spawn conflict. The great irony, in fact, is that constitutions— written in large part to regulate and curtail conflict so as to increase the likelihood of regime stability—have so often been at the center of the world’s most intense political and legal battles. Debates over linguistic identity in Canada, sovereignty in Eastern Europe, democracy in the Middle East, ethnic particularism ...
6. Constitutional Recognition
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Referring to the plight of linguistic, ethnic, racial, and religious minorities in many contemporary societies, James Tully once remarked that these “communities” are often frustrated by a lack of cultural and constitutional recognition.1 Culturally, groups such as the Zulus and the Ndebele in South Africa were, until recently, largely ignored in many of the republic’s most prominent public and ...
7. Constitutional Empowerment
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Of all the noteworthy paradoxes of the modern constitutional age, one of the most interesting is the one that highlights the seemingly schizophrenic nature of the constitutional instrument itself. A constitution is a limiting agent, a device charged with the task of restraining the various institutions of the polity by establishing rules and guidelines prior to the commencement of a new regime’s ...
8. Constitutional Limits
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The time has come to revisit, and develop more fully, the notion of constitutionalism. For many, the primary function of a constitutional document is not necessarily captured in the seven chapters above. A constitution’s principal role, according to these observers, is not to articulate the polity’s aspirations, or to empower the main political institutions to enact public policy in the name of the ...
Conclusion: Constitutional Futures
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A great many polities across the globe have scrutinized the American experience in constitutional formation when setting out to create their own constitutionalist regimes. They have understood that individual foundings will differ because political, social, cultural, racial, economic, transnational, agricultural, and ecological factors all contribute to the type of constitutional order that emerges ...
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Page Count: 232
Publication Year: 2009
Series Title: The Johns Hopkins Series in Constitutional Thought
Series Editor Byline: Sanford Levinson and Jeffrey K. Tulis, Series Editors