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In Search Of A Substantive Republic, James E. Fleming, Linda C. Mcclain
In Search Of A Substantive Republic, James E. Fleming, Linda C. Mcclain
Faculty Scholarship
The publication of Michael J. Sandel's Democracy's Discontent: America in Search of a Public Philosophy is a long-awaited and important event in political and constitutional theory. In 1982, through his first book, Liberalism and the Limits of Justice,1 Sandel emerged as a leading communitarian or civic republican critic of liberalism. That book became prominent, not because its criticisms of liberalism were dispositive, but because it eloquently and elegantly captured discontent with liberalism and evoked yearnings for an alternative. Since then, Sandel has occupied a position on the American intellectual landscape as a placeholder for a *510 communitarian or civic …
On Reading Recipes -- And Constitutions, Gary S. Lawson
On Reading Recipes -- And Constitutions, Gary S. Lawson
Faculty Scholarship
Modem theories of constitutional interpretation typically make the truth of propositions about constitutional meaning depend, at least to some degree, on the extent to which those propositions (1) lead to politically legitimate results' and/or (2) cohere with modem constitutional practice.2 That is, such theories generally maintain that correct interpretations of the Constitution must provide normative grounds to apply those interpretations in real cases, must be consistent with at least a substantial amount of real-world constitutional decisionmaking, or both.
Fidelity To Our Imperfect Constitution, James E. Fleming
Fidelity To Our Imperfect Constitution, James E. Fleming
Faculty Scholarship
What is the question of fidelity a question about? The topic of our Symposium, "Fidelity in Constitutional Theory," raises two fundamental questions: Fidelity to what? and What is fidelity? The short answer to the first-fidelity to the Constitution-poses a further question: What is the Constitution? For example, does the Fourteenth Amendment embody abstract moral principles or enact relatively concrete historical rules? And does the Constitution presuppose a political theory of majoritarian democracy or one of constitutional democracy? The short answer to the second-being faithful to the Constitution in interpreting it-leads to another question: How should the Constitution be interpreted?' Does …