Constitutional Boundaries

Our large theme is failure and success in constitution making, or the limits of constitutional democracy. The convergence of recent scholarly work in political science and law and political events throughout the world make this a timely project inside and outside of the academy. The number of new constitutional texts written in support of regime formation in the past thirty years is astonishing. The profusion of ideas and scholarship on constitution making also marks a milestone for social science, which had long neglected the study of laws and constitutions, and for legal studies, which recently added the study of constitutional design to its usual emphasis on constitutional interpretation and analyses of court doctrine. This worldwide effort in political and academic arenas is, however, marked by a kind of ambivalence. On the one hand, there is considerable optimism that constitutional democracy represents a high point, if not a culmination, in the history of political life. The attractiveness of this political idea is so powerful that even countries such as Russia, whose long anticonstitutional pedigree continues to shape politics as it is experienced there, claim to be constitutional democracies. On the other hand, for all the attractiveness of the idea of constitutional democracy, establishing it in practice has proved difficult in many new regimes throughout the world, as the Russian case and the conflicts in Iraq and Afghanistan vividly illustrate. Constitutional democracy is at once an attractive idea and a daunting enterprise. There are limits to the possible establishment, to say nothing of the flourishing, of the idea of constitutional democracy. This book takes up the concern about the limits of constitutional democracy by returning to its most basic questions: What is constitutional democracy? What does it mean for constitutional democracy to succeed or fail? To address issues so fundamental that they are often overlooked or taken for granted means that one can no longer assume the attractiveness of the idea of constitutionalism but must interrogate the meaning, limits, and appeal of the constitutional idea. Our usual way of talking about the limits of constitutional democracy is to discuss the variety of indigenous circumstances—ethnic and tribal traditions, lack of 2 Copyrighted Material INTRODUCTION. TULIS AND MACEDO commitment to a rule of law, religious strife—that hinder its development. For many who adopt this usual approach, constitutional democracy itself is unlimited in its appeal, but circumstances limit its establishment. In this book, we reverse …