Faculty Bibliography

Is the constitution ideally "legal" or "political"? "Written" or "unwritten"? How thick or thin are its principles and guarantees? Where does constitutional fidelity fit among liberal political virtues? What of "restraint" in the conduct of judicial constitutional review, or "originalism" in constitutional interpretation? These are questions raised by lawyers in constitutional-democratic societies throughout the world. In Constitutional Essentials: On the Constitutional Theory of Political Liberalism, Michelman not only raises these questions but explains why these debates persist in modern day constitutional democracies. Through the lens of John Rawls' seminal work Political Liberalism, Michelman responds to the problems governments of constitutional-democratic societies face from deep-lying disagreement among citizens. Rawls' suggested one solution: a "constitution," one that included a bill of rights-that all, despite other disagreements, could accept. Michelman explains Rawls' proposal, placing it within a duality of functions -"regulatory" and "justificatory" - for which, he says, lawyers in constitutional-democratic societies typically look to their countries' bodies of constitutional law. A close examination of the constitution-centered proposition on political legitimacy, this book will be valuable reading to academics in the fields of politics, philosophy, and law.

If provision for democracy is a requisite feature for the basic structure of any justly ordered political society, and if democracy signifies a social state of relative absence of hierarchies of class, status, or command linked to differentials of wealth, it would seem that a democratic country’s constitution would quite compatibly include provision for a social minimum. If democracy at the same time signifies a political regime of control by current majorities over major directions of government policy, apparent tensions then arise between the social and political significations of democracy. This chapter aims to unpack these tensions and to describe some modes of accommodation of them—conceptual, doctrinal, and institutional—disclosed by current practice and debates.

A “property clause” is a dedicated text in the written basic law of a constitutional-democratic state, addressing the question of the security of asset-holdings (and of their values to their owners) against impairment by action or allowance of the state. The clause provides a defensive guarantee against such impairments, in the form of a trumping right of every person to be protected – perhaps not absolutely and unconditionally, but not negligibly, either – against state-engineered losses in lawfully established asset-holdings or asset-values. How should someone writing a constitution for an expectantly “social liberal” state regime think about the question of a property clause? Without suggesting that there can be any one-size-fits-all sort of answer to the question of including such a clause or not, this paper confines itself to doubting sharply one sort of a reason our constitution-writers might consider for including one – namely, that a liberal constitutional bill of rights ought to contain clauses covering all classes of interests of persons that qualify in liberalism as basic rights and freedoms and the interest distinctively protected by a property clause does so qualify – and suggesting some pros and cons regarding a quite different sort of reason for inclusion that the writers will also undoubtedly ponder – namely, that the clause will serve to keep lawmakers and constitutional adjudicators properly attuned to a national foundational commitment to a system of political economy in which markets play a key role. This essay, prepared as an after-dinner talk for the Conference on Constitutional Revolutions and Counter-Revolutions held at the New School for Social Research, May 5-7, 2011, is a companion to my “Liberal Constitutionalism, Property Rights, and the Assault on Poverty,” Stellenbosch Law Review (2012) (forthcoming), which treats more expansively some points made summarily here. A version of this essay will appear in Constellations 12 (2012).