Gary J. Jacobsohn

Theorizing the Constitutional Revolution

The concept of the constitutional revolution has become ubiquitous, but it is applied to all manner of things that are unlike each other in notable ways. It has been generously applied to events in such far-flung places as South Africa, Eastern Europe, Great Britain, India, Canada, Iran, Israel, and the United States. Despite its oxymoronic character, it has the potential to illuminate a much-vexed subject of scholarly inquiry. This article seeks to sharpen conceptual clarity in the way we depict constitutional change, specifically that species of change that entails significant breaks or departures in the workings of the constitutional order.

Three Models of Secular Constitutional Development: India, Israel, and the United States

As a subject for serious investigation, constitutionalism in faraway places seems finally to have come of age. To appropriate the famous metaphor from the First Amendment arena that is the concern of this paper, it is as if, until relatively recently, a “wall of separation” had shielded both scholarly and judicial analysis of American constitutional issues from the experience of other polities. As a result, too often constitutional inquiry has been denied the illumination and insights of comparative research. My specific aim in this article is to explore the concept and practice of the secular constitution within three nations that are committed, albeit in different ways, to the principle of religious liberty.

Modern Jurisprudence and the Transvaluation of Liberal Constitutionalism

This article focuses on some of the recent work in constitutional jurisprudence, especially the writings of Ronald Dworkin. It argues that the liberal constitutionalism of the present represents a significant, although not always acknowledged, departure from the liberal constitutionalism of the founding period. The Constitution in effect becomes an object of transvaluation, involving an important reordering of underlying philosophical assumptions and commitments. Thus, the considerable infusion of Rawlsian moral theory into constitutional theory has influenced both the substance of constitutional scholarship and the perception of the role of the judiciary in American politics. The implications of this for the enforcement of individual rights are explored through a contrast of Dworkins ideas with Madisons Federalist contributions. The countermajoritarian impulses common to both theories turn out to have quite different lessons for students of judicial authority.

Introduction: the comparative turn in constitutional theory

Our subject is comparative constitutional theory. As editors of this book we would like to say what was once said in the first installment of a much more significant work: “The subject speaks its own importance.”1 Of course the author of this declaration, Alexander Hamilton, had such weighty matters as “the existence of the UNION” and “the fate of an empire” in the calculation that brought him to his summary view of The Federalist’s significance to the task at hand. Nothing so consequential is at stake for us, but, beyond stating the obvious, we must address a preliminary question concerning what exactly it is our subject comprehends. A proper response might begin with the issue Hamilton raises in Federalist #1’s opening paragraph, “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”2 This question is as vital today as it was in the eighteenth century. The collapse of communism in Eastern Europe and authoritarianism in the Iberian Peninsula and Latin America led to renewed optimism about the possibilities of constitutional design at the end of the twentieth century. The populist, authoritarian headwinds buffeting long-standing democracies in the North Atlantic World in the twenty-first century, however, have undermined Whiggish views of democracy’s progress while underscoring the continued importance of questions of design. The Federalist remains relevant to contemporary debates because it provides us with a methodology or a toolbox for thinking about problems of design that is grounded on reason and empirical observation.3 The activity that today is conducted under the designation constitutional design is in no small measure attributable to the success of Publius’ earlier effort. As one of our contributors, Stephen Tierney, writes in his chapter for this volume, “Constitutional theory is concerned with the notion of a well—or poorly—functioning

Rights and American Constitutional Identity

Much of contemporary constitutional theory underestimates the disharmonies within and disharmonies of constitutional orders. This article examines the dissonance characterizing constitutional identity that is present either in the disjunction between a constitution and the social order within which it functions, or between commitments internal to the document itself. From very early on, American framing of rights has revealed a tension between individual and collective meanings, between rights of persons and rights of the people. This article explores the manifestation of this tension in the evolution of the vexing concept of unenumerated rights. While expressive of the particularities of the American constitutional experience, the story illustrates a broader developmental process that is endemic to the constitutional condition.

Judicial Activism in Israel

Judicial activism has become increasingly significant to law and politics in Israel. The evolution of Israeli jurisprudence since the establishment of the State in 1948 includes an expanding role for the judiciary in determining the shape and content of the law. In this chapter I will discuss this phenomenon in relation to another frequently observed development — the growing use by Israeli judges of American legal precedents and scholarship. The purpose is not to suggest a causal relationship between the two, but to provide a point of reference with which to discuss some aspects of the character and implications of judicial activism in Israel. Also, while legal transplantation has figured prominently in many of the activist decisions of the Israeli Supreme Court, my focus will not be on the specific doctrinal importations that have been applied in these cases, but on the broader theory that has, in the United States, and to a lesser (but growing) extent in Israel provided jurisprudential support for judicial activism. The concern of the chapter is judicial activism in Israel; the approach will be to examine the fit between constitutional theory and constitutional adjudication where the two have evolved in separate and different political contexts.

Hamilton, Positivism, & the Constitution: Judicial Discretion Reconsidered

This article takes issue with Raoul Bergers account of the Constitution as a positivistic legal document. It argues that there is no incompatibility between what Berger rightly perceives as a principal concern of the founders, that discretionary judicial power be carefully circumvented, and the intent of these men to establish a Constitution embodying certain principles of natural right and justice. Alexander Hamiltons jurisprudential reflections, the author contends, suggest that the commitment to a written constitution did not rule out natural law as an appropriate source for constitutional adjudication. Hamiltons writings are infused with this understanding; thus they help us avoid confusing a commitment to positive law with a commitment to positivistic jurisprudence.

The "Pragmatic Dogma" of the Political Thicket: The Jurisprudential Paradox of "One Man, One Vote"

The compatibility or contradiction of pragmatism and dogmatism has presented a problem to students of American jurisprudence. With seeming inconsistency both critics and supporters of the Warren Court have stressed the pragmatic nature of its decisions despite the dogmatic quality of some of its major guiding norms. The author analyzes the apparent contradiction in the context of the reapportionment issue. He finds that the judicial logic of the Warren Court can accommodate both principles and concludes that pragmatism provides no reliable guarantee against the pitfalls of dogmatism.