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Against Constitutionalism

Martin Loughlin

ISBN 9780674268029

Publication date: 05/17/2022

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A New Statesman Book of the Year

A critical analysis of the transformation of constitutionalism from an increasingly irrelevant theory of limited government into the most influential philosophy of governance in the world today.

Constitutionalism is universally commended because it has never been precisely defined. Martin Loughlin argues that it is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. An Enlightenment idea that in the nineteenth century became America’s unique contribution to the philosophy of government, constitutionalism was by the mid-twentieth century widely regarded as an anachronism. Advocating separated powers and limited government, it was singularly unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation, giving the Constitution an unprecedented role in society. Once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity.

Against Constitutionalism explains why this has happened and its far-reaching consequences. Spearheaded by a “rights revolution” that subjects governmental action to comprehensive review through abstract principles, judges acquire greatly enhanced power as oracles of the regime’s “invisible constitution.” Constitutionalism is refashioned as a theory maintaining that governmental authority rests not on collective will but on adherence to abstract standards of “public reason.” And across the world the variable practices of constitutional government have been reshaped by its precepts.

Constitutionalism, Loughlin argues, now propagates the widespread belief that social progress is advanced not through politics, electoral majorities, and legislative action, but through innovative judicial interpretation. The rise of constitutionalism, commonly conflated with constitutional democracy, actually contributes to its degradation.

Praise

  • Loughlin has written a short, dense book of considerable intellectual and political importance. Against Constitutionalism is an essential argument, forcefully made, and bristling with both learning and thinking.

    —Jedediah Purdy, author of This Land Is Our Land: The Struggle for a New Commonwealth

Author

  • Martin Loughlin is Professor of Public Law at the London School of Economics and Political Science. A Fellow of the British Academy, he is series editor of Oxford Constitutional Theory and author of The Idea of Public Law, The British Constitution: A Very Short Introduction, and Political Jurisprudence.

Book Details

  • 240 pages
  • 6-1/8 x 9-1/4 inches
  • Harvard University Press

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