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Joseph Weiler, Eric Stein, And The Transformation Of Constitutional Law, Daniel Halberstam
Joseph Weiler, Eric Stein, And The Transformation Of Constitutional Law, Daniel Halberstam
Book Chapters
This chapter pursues that idea in three parts. Part I reviews the key contributions of The Transformation of Europe. Part II takes us back for a critical analysis of the idea of ‘constitutionalism’ as first developed by Eric Stein and then deployed by Joseph Weiler. On closer inspection, we shall see here that The Transformation of Europe may have neglected a core element of constitutional law, something this chapter terms a ‘generative space’ for law and politics. As this part further explains, recognising this generative element of constitutionalism lies at the heart of the struggle to make sense both practically …
The Constitutional Constant, Richard A. Primus
The Constitutional Constant, Richard A. Primus
Articles
According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. …