Faculty Bibliography
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If members of a populace consciously share a description of an essential, durable feature of the constitution in force in their country (say, its provision for resolving disputes concerning the constitution's meaning and application), must they also share a view of that constitution as the prior utterance of authors whose word is deemed binding? Can a constitution's liberal legitimacy be grounded in the historical facts of its authorship, as opposed to present and personal assessments of that constitution's substantive rightness? If the answers to those questions are "no" and "no," are referrals to authorship to be excluded from any place in an account of the possibility of constitutional legitimacy on liberal terms? These questions arise in the wake of Ming-Sung Kuo's contention that certain writings of Frank Michelman attempt yet fail to show how confirmations of constitutional legitimacy can be "unhinged" from referrals to constitutional authorship. All three should be answered "no."
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Where frequent, obdurate, reasonable disagreement over the wisdom and the justice of statutes and government decrees is an accepted fact of political life, justification for the force of law may come to rest on the idea that the laws and decrees, however sharply and reasonably contested, gain a kind of immunity against justified complaint from the fact of their having issued in compliance with the terms of a good, right, or accepted constitution. My lecture will draw from recent events and debates in South Africa, in a consideration of possible limits (or objections) to such a constitution-based principle of political justification.
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Twenty years ago, talk of American exceptionalism in the field of human rights would doubtless have been tinged, at least, with congratulation; these days, maybe not. Spoken today, the term probably insinuates a degree, at least, of insularity and smugness.¹ Consider the movement dubbed “judicial globalization” by one of its chroniclers.² Ever more widely and regularly, judiciaries in democracies abroad have been treating each other’s judgments as required reading in the work of domestic or regional bill-of-rights adjudication. From this movement the American Supreme Court has stood noticeably aloof, thus earning itself a mildly pariah status, at least in globalist
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In the United States, where a written constitution and bill of rights have the force of law, we take for granted that judges of law will sometimes rule upon the legal validity of legislative and executive acts of government. The U. S. Constitution, as law, certainly outranks all other domestic legal material; that is the point of having the kind of constitution we have. It easily follows that when one party to a litigated dispute appeals to a governmental act in support of some legal claim or defense, the other party can always logically respond (and, as it happens, can
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Suppose we are passing legal judgment on the conduct of another. We want, therefore, to know what the law requires and permits of actors in the other’s position in the case at hand. We don’t know yet, so we shall have to conduct some sort of inquiry to find out. It happens that we are already dead certain about what morality permits and requires of the other in this case (setting aside whatever general moral obligation or pressure there may be to conform to the law as the law). What part, if any, does our prelegal moral knowledge (so to call it) play in our inquiry into the regulative content of the situationally applicable law?A possible answer, in some ways quite appealing, is “none at all.” Legal content, we might then say, is whatever authorized lawmakers decide to make it. Authorized lawmakers may or may not have conformed the applicable law for this case to the applicable moral permissions and requirements. If they did not, the product of their law-making activity is no less the law than if they had. If we wish to follow the law, our task is to find out what they did; never mind what morality would have had them do. Law is one thing, morality is another.Contentious as this strict separationist view may be in some quarters, it nevertheless infiltrates almost everyone’s thought about what it means to find and follow the law. But making the law is something else entirely.
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The apparent absence of a commitment to socioeconomic rights in United States constitutional law gives rise to continuing debate. It is unclear that this omission has any bearing on the actual performance of American governments in the social welfare field. Might there be other reasons for treating the omission as problematic? If so, might the omission nevertheless be explained in terms consistent with the belief that some kind of socioeconomic commitment ideally does belong in the constitutional law of a country like the U.S.? After briefly reviewing the uneasy instrumental case for a constitutionalized socioeconomic commitment, this article suggests why inclusion could be demanded, nonetheless, as a matter of political-moral principle. It then canvasses possible responses to the American case. These include both a possible denial that socioeconomic guarantees are, in fact, lacking from U.S. constitutional law and a possible claim that omitting them is the correct choice for the U.S. as a matter of nonideal political morality.
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’Freedom is one of the underlying values of our Bill of Rights’, Langa CJ has recently written, in the course of upholding a claim for reasonable accommodation of a cultural practice in an otherwise commendable school dress code. Langa CJ quoted in support the words of Ackermann J’s minority judgment in Ferreira: ’To deny people their freedom is to deny them their dignity’.
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To hear Stu Woolman tell it, disturbing lapses and weaknesses - an apparent 'lack of analytical rigour' suggesting what could be a 'penchant for outcome-based decision-making' - have been showing up recently in the work of a Constitutional Court whose prior record of performance has deservedly garnered widespread applause. Woolman cites as evidence three decisions from the Court's work in the year 2007: Barkhuizen, Masiya, and NM, and suggests that his reactions to these decisions are widely shared among South Africa's well-informed Court-followers. He makes a worthy, illuminating, formidable case, one that the Court would do well to consult and ponder.
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Kniha umožňuje hlubší porozumění sporům o ospravedlnění a zakládání ústavy, a tak zaplňuje mezeru, která se objevila v aktuálních diskuzích o ústavě v mnoha evropských zemích.
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The comparison drawn: a difference in legal doctrinesA seminar is in progress. The general theme is relationships and comparisons between US and European constitutionalism. The programme includes, as one topic for discussion about which you, as an American constitutional lawyer, are especially invited to comment, ‘the protective function of the state’. What question, exactly, is being put to you?Is the issue supposed to be ‘ESR’, economic and social rights? In relation to constitutional law, the question of the state’s ‘protective’ function easily could be taken to mean – or to include – the question of obligating the state, by constitutional-legal mandate, to ensure provision to all citizens of the means of satisfying certain material interests such as subsistence, housing, health care and education. I take the meaning, though, to be a different one. By its reference to the state’s ‘protective function’, I understand the seminar programme to mean the state’s function of safeguarding inhabitants effectively against various forms of violation and intrusion at the hands of fellow inhabitants. Thus, I envision the comparative seminar’s agenda listing, as two separate topics for discussion, ‘ESR’ and ‘the protective function of the state’.Thus understanding the ‘protective function’ question, it seems the response to it might be both short and sweet. Alike in US and European law, everyone enjoys a range of civil rights against abusive treatment by other members of society.
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Can comparative encounter with another country's constitutional-legal choices-regarding, say, the fabrics of doctrine respectively woven by the judiciaries of the two countries in their efforts to cope juridically with some class of social controversies-ever help us to see ourselves clearly? American constitutional law remains closed to the dichotomizing doctrine, despite the obvious comforts of embracing it. Maybe the path to embrace winds through a form of constitutional patriotism, both communitarian and social democratic, that does not thrive uncontested in the land of the free. What the comparative mirror reflects is the tenacious streak of self-reliant individualism in our ideological soul.
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Racial classifying itself may become a form of maltreatment, and the dilemmatic result is that while refusing to classify by race may sometimes amount to maltreatment, proceeding to classify by race always does. This essay is a comparative study of the imprint of this fusion in the constitutional-legal dogmatics of two countries, the US and South Africa. It first lays out a certain bind for doctrinal development to which a side-constraint "take" on racial classification seems destined to lead in a country such as the US. It then describes the rise in South Africa of a constitutional-legal discourse of antidiscrimination that arguably evades the side-constraint effect and resulting strains on the law's claim to consistency, even though that discourse has not been immune from the impulse to fusion. The essay concludes with a brief reflection on the availability of the South African solution for use by American jurists.
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Il ruolo del potere giudiziario, in particolare delle Corti costituzionali e supreme, il significato della democrazia nei sistemi costituzionali e quello del liberalismo, sono i temi principali del testo di Michelman.
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The question of legal legitimacy, liberally understood, is that of whether anyone has a morally justified complaint about impressment into compliance with a particular law or set of laws. A good constitution may possibly contribute towards a liberally legitimate practice of national politics. This essay is concerned with one way in which a constitution, no matter how excellent, cannot thus contribute. We cannot use judgments regarding constitutionality to bridge the gap that must always exist between judgments regarding the validity of controversial laws and judgments regarding their legitimacy. We cannot hope to solve in that ’contractual’ or ’procedural’ way the riddle of government by consent in modern social conditions of deep ethical plurality and conflict, because we cannot successfully combine a proceduralist idea of constitutional legitimacy with a content-based conception of the binding virtue for constitutions. [O]ur exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational. This is the liberal principle of legitimacy.
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The author examines whether a state’s constitution has a role to play in determining how a liberal political order fends off the dangers that emerge from disagreements over morally contentious issues of public policy. He asks how a constitution can contribute to governmental respect-worthiness and legal legitimacy, and concludes that the "contractual constitution" theory alone cannot adequately answer the question.
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To use a political term of the time, a "social contract" that included biblical believers and Enlightenment rationalists was the basis of the founding of the United States...Our pressing question is...whether the successor parties--today's governed populace and their judicial governors--still recognize the essence of the contract. In practice, the American scheme of constitutional democracy invests the courts with ultimate authority to decide what the Constitution is to mean.
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Proposals to put positive social and economic guarantees into constitutional law typically meet an objection linked to judicial review (the ’institutional objection’). It seems that a related objection would hold even assuming away judicial ’enforcement.’ The constitutionalized rights would, after all, be no less intended to curb and constrain the choices of current majorities (the ’majoritarian objection’). Constitutionalization of social rights may, moreover, be thought to render the constitution nontransparent in a way disallowed by leading liberal accounts of political legitimacy (the ’contractarian objection’). On the table, then, are three possible objections to constitutionalization of social rights-institutional, contractarian, majoritarian. The first, the author argues, ought to be the least of our concerns; the second is manageable, or at any rate political liberals cannot deny that it is while upholding in general the practice of constitutionalism; and the third is grave only if we choose an ideal or normative conception of democratic decisionmaking that is not the only one available to us, or the best one. Reprinted by permission of Oxford University Press
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Disagreements regarding the application of constitutional guarantees or rights protections in the courts of contemporary democracies are to be expected based on the principle of "reasonable interpretive pluralism," under which a diversity of complex ethical & metaphysical viewpoints can coexist. Examined here is the discussion of these ideas by legal scholars Johan van der Walt & Henk Botha (2000) in the context of the South African system of constitutional review. Their arguments concerning the constitution’s incorporation of a universally accepted standard – a "common will of the people" – to help decide cases involving a high degree of contestation, along with their assertion that constitutional review should strengthen regard for the "lack of ethical harmony" in society, are challenged as representing paradoxical claims; this is particularly apparent regarding political justification. The political-liberal theory of political justification via constitutional justice is explored, offering the 1998 case of Pretoria City Council v. Walker as an illustrative example. The liberal principle of legitimacy is reviewed, & van der Walt & Botha are accused of being "far-out liberal political justifiers.". K. Hyatt Stewart
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The grounds for believing that the US Supreme Court majority, in Bush v. Gore, acted out of a personal and ideological preference in awarding a victory in the 2000 presidential election to George W. Bush are examined.
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Reform proposals are on the table involving legal restrictions on how, and how much, money is spent in elections by candidates, parties, PACs, and others, very possibly accompanied by proposals for public financing of election campaigns, maybe involving the use of vouchers. Michelman discusses whether the Constitution authorizes tight judicial supervision of reform choices.
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Professor and author Kenneth L. Karst believes that the case for judicial review rests heavily on the courts' unique ability to advance the cause of a unified, diverse, national community. Karst believes that the US could use a more experientially and culturally diversified judiciary than it now has. It is suggested, however, that a representative judiciary may not be what is needed.
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The question of what is truly just in the matter of a country's currently established human‐rights interpretations appears not to be the same as the question of what it is morally right to do by way of coercively effectuating a given set of such interpretations. There are grounds for contending that acts of support for a coercive political regime can be justified morally on the condition that the regime's prevailing human‐rights interpretations are made continuously available to effective, democratic critical re‐examination. However, it is not possible ever finally to know whether that condition is satisfied.
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Michelman examines the impossible, unrelinquishable idea of the intentional constitution, of constitution as legislation--or, as "writing" or as "written."
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In Brennan and Democracy, a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we–or should we–embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country’s model "activist" judge for the past forty years. Michelman draws on Brennan’s record and writings to suggest how the Justice himself might have understood the judiciary’s role in the simultaneous promotion of both democratic and constitutional government. The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan’s judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal.
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