The most notable feature of the notion of states of emergency is the assumption of their unpredictability. As such, it has been both normatively and positively deeply embedded in constitutional thought and practice to this day. However, notwithstanding its unavoidable advantages, I try to claim that it represents a somewhat outdated concept that stands in opposition to the normative development...

When and why are codified constitutions efficacious? Answering these key and apparently straightforward questions turns out to be extremely challenging. The road to responding to them is paved with conceptual, theoretical, and empirical difficulties. In this article, I make a modest, but nevertheless hopefully useful, claim: that overlooking certain conceptual difficulties is detrimental to the...

Drawing on the ideas of Stuart Hampshire, this paper argues that American constitutionalism, thought of as a set of practices for resolving conflict, may be especially helpful in the postmodern condition because it encourages the resolution of conflict among different cultural conceptions of the good by practices of adversarial argument and procedural justice, rather than simply by force and vi...

The goal of originalism has always been purity. Originalists claim that their methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method-the approach that reveals the purest constitution...

The Patient Protection and Affordable Care Act ignited a political firestorm and raised intriguing new questions of constitutional law. Cutting a path between the liberals and conservatives on the US Supreme Court, Chief Justice John Roberts made small adjustments in established constitutional law to uphold key features of the act. In doing so, he not only upheld the statute but also left the l...

The rule of law is a cornerstone of contemporary constitutional democracy1 as was underscored by its role in cementing the recent transitions from authoritarian or totalitarian regimes2 to constitutional democracy in Eastern Europe and elsewhere.3 In the broadest terms, the rule of law requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative ...