Modern Constitutions (Democracy, Citizenship, and Constitutionalism) - Hardcover

Hardcover

ISBN 10: 0812252349 ISBN 13: 9780812252347

Verlag: UNIV OF PENNSYLVANIA PR, 2020

Inhaltsangabe

More than two millennia ago, Aristotle is said to have compiled a collection of ancient constitutions that informed his studies of politics. For Aristotle, constitutions largely distilled and described the varied and distinctive patterns of political life established over time. What constitutionalism has come to mean in the modern era, on the other hand, originates chiefly in the late eighteenth century and primarily with the U.S. Constitution—written in 1787 and made effective in 1789—and the various French constitutions that first appeared in 1791.

In the last half century, more than 130 nations have adopted new constitutions, half of those within the last twenty years. These new constitutions are devoted to many of the same goals found in the U.S. Constitution: the rule of law, representative self-government, and protection of rights. But by canvassing constitutional developments at the national and state level in the United States alongside modern constitutions in Eastern and Western Europe, Africa, and Asia, the contributors to Modern Constitutions—all leading scholars of constitutionalism—show that modern constitutions often seek to protect social rights and to establish representative institutions, forms of federalism, and courts charged with constitutional review that depart from or go far beyond the seminal U.S. example. Partly because of their innovations, however, many modern constitutional systems now confront mounting authoritarian pressures that put fundamental commitments to the rule of law in jeopardy.

The contributions in this volume collectively provide a measure of guidance for the challenges and prospects of modern constitutions in the rapidly changing political world of the twenty-first century.

Contributors: Richard R. Beeman, Valerie Bunce, Tom Ginsburg, Heinz Klug, David S. Law, Sanford Levinson, Jaime Lluch, Christopher McCrudden, Kim Lane Scheppele, Rogers M. Smith, Mila Versteeg, Emily Zackin.

Über diesen Titel

Über die Autorin bzw. den Autor

Rogers M. Smith is the Christopher H. Browne Distinguished Professor of Political Science at the University of Pennsylvania. He is the author or coauthor of eight books, most recently That Is Not Who We Are! Populism and Peoplehood. Richard R. Beeman (1942-2016) was the John Welsch Centennial Professor History, Emeritus, at the University of Pennsylvania. He was the author of eight books including Our Lives, Our Fortunes and Our Sacred Honor: The Forging of American Independence, 1774-1776.

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Introduction
Rogers M. Smith with Richard R. Beeman

The Tasks of Constitution-Making

Aristotle is said to have compiled a collection of ancient constitutions that informed his studies of politics, writings that retain lasting influence after more than two millennia (e.g., Armstrong 1981, 71). But for Aristotle, constitutions largely distilled and described the distinctive patterns of political life established over time in many differing ways in many places. What constitutionalism has come to mean in the modern era originates chiefly in the late eighteenth century and primarily with the United States Constitution, written in 1787 and made effective in 1789, and the various French constitutions that began in 1791.

In some of their elements, especially in their adoption of representative assemblies, both of these first modern written constitutions were influenced by the prior example of Great Britain's "unwritten constitution" and its parliamentary institutions. With the global expansion of the British Empire through the end of the nineteenth century, the British model of constitutionalism continued to have far-ranging impact, along with the French and the American. Even the constitutions of Russia and the Union of Soviet Socialist Republics after the Bolshevik Revolution drew on these traditions, especially French constitutionalism (Pipes 1990, 161, 516). Then, after World War II brought an end to the age of European empires and a new emphasis in international law on human rights and human dignity, postcolonial nations began crafting new constitutions, a trend that only accelerated through the beginning of the twenty-first century. Beginning with the influential Indian Constitution of 1950, many of these new constitutions started to incorporate a broader range of social rights and recognitions for claims of cultural communities and disadvantaged groups than their historical predecessors, causing many scholars to classify them as instances of "transformative" constitutionalism (Dinghra 2014). As part of the "left turn" in Latin American politics during the early twenty-first century, Latin American nations especially were in the forefront of adopting new constitutions that expanded commitments to "social, economic, and cultural" rights of long-marginalized groups, though efforts to implement the new constitutional guarantees often met with strong resistance (Gargarella 2018, 203).

Today, the practice of formally adopting, if not necessarily governing by, constitutions is nearly universal. The Comparative Constitutions Project, directed by Professors Zachary Elkins and James Melton along with Thomas Ginsburg, a law professor, political scientist, and contributor to this volume, has collaborated with Google to provide online access to all of today's constitutions—a far more massive and fast-changing documentary endeavor than Aristotle confronted, abetted by technology of which he could only dream. Their project currently includes 195 national constitutions. Of those, 132 were adopted in 1975 or later; 65 were adopted in 1995 or later; and many others have been significantly modified during those years. Though it is reasonable to doubt the efficacy of written constitutions in many contexts, it cannot be denied that in the modern era an enormous amount of political effort has been devoted to constitution-making. The twenty-first century shows no signs of it slowing, much less ceasing.

In regard to the central goals of the world's early modern constitution-makers, however, there are now signs that the efficacy of modern constitutionalism may be waning, or at least that constitutionalism is being substantially redirected in many regimes. At the end of the second decade of the twenty-first century, politics and law within many lands and also across national lines have been reshaped by the rise of insurgencies labeled "populist." These movements, most often on the right though sometimes on the left, frequently treat constitutions solely as vehicles for, not as checks upon, the direct expression of the will of the majority, or the will of leaders that claim to speak for majorities. The editors of one recent volume warn that "the global momentum toward constitutional democracy" has now "stalled and perhaps has begun to reverse" (Graber, Levinson, and Tushnet 2018, 2).

A leading student of contemporary populism, Jan-Werner Müller, argues somewhat differently. He holds that not only do modern populist movements claim to speak for democratic "peoples," they also profess to support constitutionalism. But rather than seeing constitutionalism as an effort to guide and limit governmental power through the rule of law, they treat a constitution as "a purely partisan instrument to capture the polity" (Müller 2016, 68). If so, then constitutionalism in the twenty-first century is coming to mean something very different from what "modern" constitutionalism meant in the eighteenth, nineteenth, and twentieth centuries, and something that does entail the decline of many older liberal conceptions of constitutional democracy.

These developments may only mean, however, that modern constitution-makers are in many countries giving different responses to the fundamental issues that constitutionalism always addresses. Reflection suggests that all constitution-making requires answers to at least six broad and basic questions.

First, who has the authority to write a constitution or to propose amendments to that constitution? Can and should it be committees in the legislatures in existing regimes, or executive branch officials, or special teams of experts appointed by one or the other, or members of an elected or appointed constitutional convention, or some other procedure?

Second, who has the authority to enact a constitution in a way that makes it legitimately authoritative? An existing legislature, chief executive, a popular referendum, or elected or appointed ratifying conventions? Or perhaps, as in the case of South Africa's 1996 constitution, might an existing constitutional court have some special role in ratification?

Third and closely related, should a constitution be difficult to amend, so that it can provide enduring structures, limits, and guides for governing? Or should it be more easily alterable, so as always to be responsive to the evolving will of the sovereign people—perhaps as embodied in a populist leader or party?

Fourth, should the constitution be fully written as a single document (even though written amendments can be added)? Or can it instead be in significant measure "unwritten," composed of venerated statutes, long-established customs and norms, and a developing body of judicial precedents, as in the classic British model?

Fifth and broadest, what sorts of governing institutions should a constitution establish—a Westminster-style parliamentary system in which the dominant coalition in the legislature appoints a prime minister or president, as well as all the other major ministers who head the executive branch that directly governs? Or a system like that in the United States, with a separately elected president, and no prime minister, even if there are powerful leaders of the legislative chambers? Or a hybrid, as in modern France, with both a prime minister and a separately elected president? What sorts of judicial institutions are appropriate, and what should their relationship to the other branches be—should there be a special constitutional court disconnected from the regular judicial system, or should constitutional review be a function of some or all regular courts, or should courts defer to the elected legislature or the executive branch on constitutional issues? What should be the division of powers between the national government and any state or provincial governments or autonomous groups and regions, or local levels of...

Details zur Ausgabe

• Verlag: UNIV OF PENNSYLVANIA PR
• Erscheinungsdatum: 2020
• Sprache: Englisch
• ISBN 10: 0812252349
• ISBN 13: 9780812252347
• Einband: Gebundene Ausgabe
• Anzahl der Seiten: 360
• Herausgeber: Smith Rogers M., Beeman Richard R.
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: Mare Nostrum Group B.V.; gpsr@mare-nostrum.co.uk; ; Doelen 72; Breda; 4831 GR; Niederlande