Constitutionalism: A Skeptical View
New York University School of Law; University of Oxford
May 1, 2012
NYU School of Law, Public Law Research Paper No. 10-87
This paper examines the ideology that goes by the name of "constitutionalism." The first part of the paper considers the significance of "written constitutions" The second part of the paper casts a skeptical eye at conceptions of constitutionalisim that emphasize "limited" government. Once "limited government" is contrasted carefully with "restrained government" (restraints upon specific actions by government) and with "controlled government" (e.g. insistence upon democratic control), we see that the association of constitutionalism with general limitations on the scope of government ought to make it a much more controversial ideal than the general anodyne acceptance of the term "constitutionalism" might lead us to expect. Finally, the anti-democratic implications of constitutionalism are explored. The paper argues that, by insisting on limited government, constitutionalism downplays the important role that constitutions have to perform in the modern world in establishing and securing specifically democratic authority.
Number of Pages in PDF File: 46
Keywords: authority, constitution, constitutionalism, constitutional law, democracy, judicial review, limited government, rights, written constitutionAccepted Paper Series
Date posted: December 11, 2010 ; Last revised: May 5, 2012
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