Constitutional Ratification without Reason
Series: Oxford Constitutional Theory;
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Product details:
- Publisher OUP Oxford
- Date of Publication 10 March 2022
- ISBN 9780198852346
- Binding Hardback
- No. of pages400 pages
- Size 240x163x31 mm
- Weight 752 g
- Language English 244
Categories
Short description:
This volume analyses constitutional ratification procedures, examines their nature, origins, history, and especially the potential justifications for their use. The author offers a comprehensive demonstration of how constitution-making recommendations can be evaluated and tested from a normative and theoretical perspective.
MoreLong description:
This volume focuses on constitutional ratification, the procedure in which a draft constitution is submitted by its creators to the people or their representatives in an up or down vote determining implementation. Ratification is increasingly common and routinely recommended by experts. Nonetheless, it is neither neutral nor inevitable. Constitutions can be made without it and when it is used it has significant effects. This raises the central question of the book: should ratification be recommended? Put another way: is there a reason for treating the procedure as a default for the constitution-making process? Surprisingly, these questions are rarely asked. The procedure's worth is assumed, not demonstrated, while ratification is generally overlooked in the literature. In fact, this is the first sustained study of ratification.
To address these oversights, this book defines ratification and its types, explains the procedure's effects, conceptual origins, and history, and then concentrates on finding reasons for its use. Specifically, it builds up and analyzes the three most likely normative justifications. These urge the implementation of ratification because the procedure: enables the constituent power to make its constitution; fosters representation during constitution-making; or helps create a legitimate constitution.
Ultimately, these justifications are found wanting, leading to the conclusion that ratification lacks a convincing, context-independent justification. Thus, until new arguments are developed, experts should not give recommendations for ratification as a matter of course, practitioners should not reach for it uncritically, and-more generally-one should avoid the blanket application of concepts from democratic theory to extraordinary contexts such as constitution-making.
In his new book, Constitutional Ratification Without Reason, Jeffrey Lenowitz carefully addresses the fundamental normative questions related to the practice of constitutional ratification. His response to the basic question of whether ratification is normatively necessary for a constitutional system is refreshingly original and poses an impressive challenge to the dominant approaches in the field. Overall, the book presents a first-rate argument in every way, especially reflective of the value of Jeffrey's approach to political theory.
Table of Contents:
1. Questioning Ratification
Basic concepts
Ratification
What kind of justification?
Why care about ratification?
Structure
2. Ratification Beyond (And Before) Constitutions
Agency law
Ratification in treaty law
Labor law & collective bargaining
Conclusions
3. The Invention of Constitutional Ratification
The Berkshire Constitutionalists
The Mechanicks' Union of New York City
Ratification by state conventions: Philadelphia
Ratification by Convention: Georgia
Conclusion
4. Making the Constituent Power Speak
The theory of constituent power
Finding constituent power justifications
Constituent power dispersed
Conclusion
5. The Unalienable Right of the Berkshire Constitutionalists
Historical context, theoretical context
Constituent power rooted in contractualism
Constitutional creation & constituent power
The Sleeping Sovereign & the Unique Site Justification
Conclusion
6. Ignorance and the Constituent Power
What kind of choice?
Condorcet's prediction
Ignorant framers
Information shortcuts
Educating the people
Conclusion
7. Representation Through Accountability
Representation justification
Ratification's potential role
Ratification as accountability mechanism
Objections
Conclusion
8. Legitimacy Types & Procedures
What is legitimacy?
Legitimate constitutions
Creating legitimacy
Pathways to constitutional legitimacy
Conclusions
9. Legitimation Device
Substantive legitimation
Procedural moral legitimation
Procedural sociological legitimation
Conclusion
10. Conclusion
Summary of findings
Lessons and questions
Context dependent reasons
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