In lieu of an abstract, here is a brief excerpt of the content:

CHAPTER 2 Political Theory and Constitutional Construction Donald S. Lutz INTRODUCTION Those who engage in political theory have a paradoxical relationship with those who engage in practical politics. On the one hand political theory, if it is to be successful, must rise above partisanship. On the other hand, since from its birth political theory has aimed at marrying justice with the exercise of power, it must be politically engaged and in some way speak to those in power. Teaching future leaders and citizens in the classroom is one non-trivial means of approaching the paradox, but it is too indirect to constitute the kind of genuine conversation that is the focus of this volume. The position argued here is that the most direct and effective way for political theorists, qua theorists, to have a meaningful dialogue with politicians is to focus on questions of constitutional construction. Although there are many factors that inhibit the dialogue in general, and constitutional discussions in particular , the most important, it will be argued, are those that disincline and disable theorists from participating in a dialogue. The most decisive of these factors is the impoverished understanding political theorists have of their own enterprise. To meaningfully engage in constitutional dialogue we have to do more than articulate and justify political ideals; we must also seriously address the problems of approximating these ideals generally and in particular contexts. As we will see, this requires that we return to a more robust Aristotelian view of political theory, and that we rescue the notion of critical theory from those who practice it as a form of partisanship. What reasons do politicians have to engage us in constitutional dialogue? As it turns out they wish to hear what we have to say, 33 34 DONALD S. LUTZ especially if we have prepared ourselves to speak with them, because they need answers to recurring questions of institutional design and operation which they readily admit they are not prepared to address. They seek our advice because questions of institutional design, or constitutionalism, are never really resolved once and for all. Moreover, such questions almost always raise fears of unintended consequences, and relative partisan advantage is rarely easy to see and therefore an uncertain guide. Since partisanship is inevitably diminished when the stakes are obscure, and when all feel as threatened by the unknown as by each other, most politicians are ready to search for a secure, common ground that can be addressed by people knowledgeable about politics but outside of the partisan struggle. Obviously the same condition occurs with respect to some policy issues, and when it does a theoretically conscious political science can expect to play a meaningful role. Yet the fear of unintended consequences is strongest when it comes to the “rules of the game,” and on these matters questions of basic political ideals are more likely to be considered of direct relevance. Let me illustrate both the interest of political actors and the nature of the problem with a few examples. For the better part of two decades I have repeatedly had the humbling experience of “advising” people engaged in the construction or reconstruction of their constitutions in countries on three continents. Several years ago an American professor whose name is familiar to every political theorist, and who teaches at a law school, which we regard as one of the two or three best in the country, addressed an assemblage of Czech and Slovak politicians engaged in writing a new national constitution. He argued that there was no particular reason to “privilege” liberal values in a constitution, and wondered aloud if there was any need to even have a written constitution since such documents tended to be “straightjackets ” that got in the way of change. He then suggested a specific set of rights as defining constitutionalism in its best form, waving aside any questions of institutional design, even though these rights were merely “constructs” and “had no real truth value.” The Czechs and Slovaks looked at him first in amazement, then in anger. This law professor, oblivious to his reception, then proceeded to Hungary to deliver the same advice under official State Department auspices.1 On another occasion a group of Europeans, working on adjusting several national constitutions to the emerging constitution of the European Union, organized a conference on Federalism. The readings, at their insistence, included papers written by Federalists and Antifederalists during the ratification of the U.S. Constitution. Two Ameri- [3.17.6.75] Project MUSE...

Share