Constitutional essentials : on the constitutional theory of political liberalism / Frank I. Michelman.

Format:

Book

Author/Creator:

Michelman, Frank I., 1936- author.

Language:

English

Subjects (All):

Constitutional law--Philosophy.

Constitutional law.

Constitutional law--Political aspects.

Liberalism.

Legitimacy of governments.

Rawls, John, 1921-2002.

Rawls, John.

Physical Description:

1 online resource (233 pages)

Place of Publication:

New York, NY : Oxford University Press, [2022]

Summary:

Frank I. Michelman explains why constitutional debates persist in modern day 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 by presenting them with Rawls' solution: an accepted constitution.

Contents:

Cover

Half-Title

Title

Copyright

Dedication

Contents

Foreword

List of Abbreviations and Short Names

Introduction: An Entanglement of Missions for Constitutional Law

1. Rawls's Constitution-.Centered "Liberal Principle of Legitimacy": A First Look

2. A Regulatory and a Justificatory Mission for Substantive Constitutional Law

3. Rawls: Justification-.by-.Constitution

4. Debates of the Lawyers

5. Plan of the Book

PART I: JUSTIFICATION- BY- CONSTITUTION

1. The Constitution as Procedural Recourse: Rawls's "Liberal Principle of Legitimacy"

1. Public Reason to Constitution?

1.1. Public Reason

1.2. Constitution

2. Constitution and Justification

2.1. Justification: The Problem of Political Liberalism

2.2. The Liberal Principle of Legitimacy (LPL)

Justification-.by-.Constitution

2.3. Who's This "We"?

2.4. Reasonability for Constitutions

3. The Constitution as a Procedure

3.1. Procedure as Deflection

3.2. Procedure Incorporating Substance

4. TJ to PL: Justice to Justification

4.1. The Constitution in TJ: "Imperfect Procedural Justice"

4.2. The Constitution in PL: Justification ("Legitimacy") in Place of Justice

2. A Fixation Thesis and a Secondary Proceduralization: Constitution as Positive Law

1. A Constitution in What Medium?

1.1. A Dated Exegetical Question

1.2. Ambiguities of "Unwritten"

1.2.1. A Directive Constitution But Conventional (Not Legal)?

1.2.2. A Constitution Empirical (Not Directive)?

2. Constitution as Directive Code

2.1. Lecture VI of PL

2.2. The Second Procedural Turn: Institutional Settlement: Objectivity, Abstraction, Deferral, and Dependence on a Referee

3. Constitution as What Happens

3.1. Shadow Norms

3.2. Each Our Own Hercules?.

3. Constitutional Essentials: A Singularity of Reason, or a Space of Reasonability?

1. A Scheme of Rights and Their Central Ranges

1.1. Between Thick and Thin: "Completeness" Without Repression

1.2. The Fallback to "Central Ranges" in a "Scheme of Liberties"

1.3. The Burdens of Judgment

1.4. Supreme Court as Referee

2. Liberal Justice Conceptions as a "Family": A Complication for the LPL?

3. The Idea of the "At-.Least Reasonable" as Bridge

4. Constitutional Law and Human Rights: The Call to Civility

1. Domains and Constituencies of Political-.Normative Discourses

1.1. Domains

1.2. Constituencies

2. Morality and Civility: Convergence or Division?

2.1. Moral Fault to Moral Obligation to Repair?

2.2. A Question of the Applicable (Sub)Morality?

2.3. Beyond Pragmatism, Relativism, and Popular Constitutionalism: Justification-.by-.Constitution

3. Civility a Moral Trump?

3.1. For Citizens at Large ("You and Me")?

3.2. For Courts of Law

5. Constitutional Fidelity: Of Courts, Citizens, and Time

1. Public Reason and Constitution: "Stricter" for Courts than for Citizens

1.1. Justification as to Means: "Guidelines of Inquiry"

1.2. Justification as to Ends: "Principles and Values"

2. Due Regard for the Constitution in Force

2.1. Application, Not Revision

2.2. "This" Constitution, or Its Family?

2.3. The Counter-.Logic of the Proceduralist LPL

2.4. Aspiration for Citizens, Obligation for Courts?

3. Temporality

3.1. Dialectical Liberal Reasonability

3.2. Flashback: The Sequence of Stages in TJ

3.3. An Idea of Constitutional-.Moral Progress?

3.4. Fixture and Project

Court and People

4. A Common-.Law Constitution?

6. A Realistic Utopia?

1. Justification as Speculative Sociology

1.1. A State of Society

2. Elements.

2.1. A Political Conception of the Reasonable

2.2. Burdens of Judgment (Including Raw Pluralism)

2.3. Liberal Political Toleration: The Idea of the At-.Least Reasonable

2.4. The Idea of Democratic Openness

2.5. The Idea of a Constraint of Public Reason

3. Remainders

PART II: "THE CRITERION OF RECIPROCITY"

7. Legitimacy: Procedural Compliance or Ethical Attitude?

1. "The Idea of Legitimacy Based on the Criterion of Reciprocity"

2. Objective Constitutionality Displaced?

3. Reciprocity on the "Constitution" Level

4. On the Particular Statute Level, a Totalization of Public Reason?

4.1. Reciprocity as Aspirational

4.2. "The Proviso"

4.3. Borderline Uncertainty

4.4. Constitutional Proceduralism to Satisfy Reciprocity?

8. Offsets to Proceduralism

1. Alternative Readings

2. Whither Institutional Settlement?

3. Proceduralism Softened?

4. Whence the Democratic-.Monist Alternative?

PART III: SOME CHRONIC DEBATES

9. Constitutional Application: Between Will and Reason

1. A Contradiction of Aims

2. Not a Digression: Rawls to Dworkin and Back

3. A Gap That Cannot Be Closed?

4. Originalism Either Way?

10. Justification-.by-.Constitution, Economic Guarantees, and the Rise of Weak-.Form Review

1. Socioeconomic Rights in a Liberal Constitutional Conception

1.1. "SER" and "Social Minimum" as Constitutional Matters

1.2. A Standard Worry

2. Four Questions: From Justice to Justiciability

2.1. Social Minimum and Justice in the Basic Structure

2.2. Social Minimum and Legitimacy in the Political Order

2.3. Social Minimum as Constitutional Essential

2.4. Social Minimum and Judicialization

3. Constitutional Essentials and Transparency

4. "The Bind"

4.1. A "Best Efforts" Commitment

4.2. Discursive Cogency

5. Enter Weak-.Form Judicial Review.

11. Judicial Restraint (and Judicial Supremacy)

1. Three Axes of Judicial Restraint

1.1. Restrained as Reserved (Opposite: Free-.Spoken)

1.2. Restrained as Tolerant (Opposite: Dogmatist)

1.3. Restrained as "Weak-.Form" (Opposite: "Strong-.Form")

2. Grounds for Judicial Restraint: Democracy and Legitimacy

3. Restraint for the Rawlsian Supreme Court

3.1. Reserved Court? ("Justiciability")

3.2. Weak(er) Court?

3.2.1. Short-.Term Legislative Consultation

3.2.2. Strong-.Form Interagency Constitutional Colloquy

3.3. Tolerant Court?

4. Summation: Rawls and Judicial Supremacy

12. Legal Formalism and the Rule of Law

1. Fixing Ideas

1.1. "The Rule of Law"

1.2. "Legal Formalism"

1.3. A Question: "Liberal Legalism" Applied to Rawls?

2. What the Rawlsian Liberal "Rule of Law" Principle Is Not

2.1. Higher Law in a Dualist System

2.2. "The Rule of Law" as Constitutional Essential

3. Formalist Remainders in Rawlsian Constitutional Rights

4. How Does Strong Democracy Finally Differ?

13. Constitutional Rights and "Private" Legal Relations

1. The "Horizontal Application" Question, Addressed to Rawls

2. Main Liberal Arguments Pro and Con Horizontal Application

2.1. On the Side of Horizontality

2.2. Against Horizontality

3. The Rawlsian Case for Horizontality

3.1. "Basic Structure" as Subject

3.2. Justificatory Function

3.3. Scheme of Liberties, "At-.Least" Reasonability

14. Liberal Tolerance to Liberal Collapse?

Bibliography

Index.

Notes:

Also issued in print: 2022.

Includes bibliographical references and index.

Description based on online resource; title from home page (viewed on November 3, 2022).

Other Format:

Print version: Michelman, Frank Constitutional Essentials

ISBN:

0-19-765585-8

0-19-765586-6

0-19-765584-X