Frank I. Michelman

Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law

The courts have developed a bewildering array of rules for determining when the government must compensate people for economic losses its programs have caused them. Professor Michelman investigates our practice of compensating for some but not all losses by asking what general grounds justify programs interfering with the marketplaces apportionment of goods and services and why, if intervention is proper, compensation need ever be considered. He concludes that the line now drawn between compensable and noncompensable harms diverges from what considerations of utility or fairness would suggest but that it may be about as perfect as a system relying mainly on court decisions can achieve. One moral is that legislatures and administrative agencies have been shirking their role in the compensation process.

Morality, Identity and “Constitutional Patriotism”

In a modern, plural society, there can be no settled agreement on the concrete legal content of a countrys constitution. The idea of the constitution is nonetheless pivotal in contemporary, liberal-minded theories of political justification, such as the ones advanced by Jurgen Habermas and John Rawls. Justification in these theories depends finally on “constitutional patriotism,” a consciously shared sentiment arising from an ethical assessment of their country by the countrys people, according to which the country credibly pursues a certain regulative political ideal for which the constitution stands.

Constitutional Legitimation for Political Acts

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.1

Human Rights and the Limits of Constitutional Theory

The question of what is truly just in the matter of a countrys 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 regimes 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.

States' Rights and States' Roles: Permutations of "Sovereignty" in National League of Cities v. Usery

A share of the blame for what follows belongs to Mr. Justice Brennan, whose twenty years of distinguished labor on behalf of our constitutional system-on behalf, I should say, of the men, women, and children whose rights and concerns that system serves-this journal justly celebrates. It was the Justice who, by his striking and powerful dissent in National League of Cities v. Usery (NLC),1 first made me think there must be even more to that case than meets the eye. His opinion is remarkable for its depth of feeling, its sense of occasion, of foreboding, of fatal and momentous choice. The eloquence is disciplined and surgical-not so sweepingly flamboyant as, say, the impassioned Frankfurters, 2 but as stirring. The opinion speaks with a controlled intensity that at first seems disconsonant with both the immediate impact of the Courts decision (denial of congressional minimum-wage protection to state and municipal employees) and its broader doctrinal significance (recognition of some state governmental immunity from congressional regulation under the commerce clause). Both developments, to be sure, are important. But it seems unlikely that the immediate impact taken by itself-if, say, it had resulted from a disputable statutory

Pragmatist and Poststructuralist Critical Legal Practice

-about the social, cultural, and political conditions in which we produce our thought; -about whether or how, in these conditions, it makes sense for us to cast our scholarship as arguments for or against any particular aspect of social practice or state of the social world; -about precisely how-at what levels of ideology, choice, and action-we understand our evaluative scholarship to extricate itself from whatever it is we mean to be contending against; -about precisely how-at what levels of ideology, choice, and action-we imagine that our scholarship might work to move the world closer to whatever it is we mean to be contending for.

A constitutional horizon

In The Democratic Horizon: Hyperpluralism and the Renewal of Political Liberalism, Alessandro Ferrara seeks a philosophical breakthrough from what looks like it could be a pending dead-end for democracy. The best hope, Ferrara superbly maintains, lies through an extension or updating – a “renewal,” as he calls it – of lines of thought bequeathed to us, by John Rawls and others, under the name of political liberalism. Somewhere near the crux of Ferrara’s reflection stands a class of institutional fixtures whose name is missing from his title. I mean the class “constitution.” I use that word to name a country’s scriptural basic law, its publicly cognizable corpus of canonically worded sentences ordaining the country’s basic institutional framework. My suggestion will be that it is no less tellingly a “constitutional” than a “democratic” horizon that Ferrara’s work, in conjunction with Rawls’s, shows us to be facing.

From dialogue rights to property rights: Reply to Shearmur

Jeremy Shearmurs consequentialist argument for universality in the distribution of individual “negative”; liberties claims that what is gained as a consequence of extending such liberties to the last hitherto excluded group is likely to outweigh what is lost by doing so. In trying to make such a claim convincing, does it help to notice that whoever is denied negative liberties is thereby impeded from contributing to social dialogue about the arts and ethics of human well‐being? Perhaps, but only on two conditions: First, we understand individual identities as intersubjectively constituted. Second, we pursue universality in the distribution of social requisites of dialogic competence beyond negative liberties.

Localism and Political Freedom

Ann Strong appears to be contending that excessive privatism in the land ethic and a shortage of regulation at an adequate scale are at the heart of land use problems. Local government actions, she suggests, are self-regarding in the same sense as private ones and they create spillovers that, from the standpoint of the nation, must be controlled. The American ideology of rights in land, however, is more complex than she implies, since the free market ideal has coexisted with a receptiveness to local political control of land use. Community self-determination is a valued process in its own right, embodying an important dimension of freedom. Simply to say that land is a divine entrustment is not to say that the United States government should be the trustee. The localist claim to control of land use is parallel to the private property or free market claim in that both appeal to notions of expediency and freedom. That freedom cannot be served by leaving only the subcritical choices to local political units.