What We're Reading: Legal and Political Constitutionalism

Jonathan Sumption offered the Reith Lectures in Washington, DC and the fourth lecture “Rights and the Ideal Constitution” explores one of the central questions that occupied Hannah Arendt’s political thinking: How can and should a constitution preserve a liberal and free government? For Arendt, no rules or constitution can by itself protect liberty  and protect against tyranny. And yet, Arendt also believed that the great success of the American Republic was based upon its deep commitment to the U.S. Constitution. Her distinction was to see that what defined the U.S. Constitution was its rejection of sovereignty and its structural commitment to dispersed and pluralist democratic participation and self-rule. For  Sumption, “the essence of democracy is not moral rectitude, but participation. And the proper function of the constitution is to determine how we participate in the decision-making processes of the state, and not to determine how the outcome should be.” This deeply Arendtian insight makes Sumption’s well worth your time.

The decline of politics and the rie of law to fill the void. I have argued that democracies depend for their survival on their ability to mitigate the power and impulses of electoral majorities. Historically they have done this two ways. One is by a system of fundamental law standing above the elective legislature and enforced by judges. The other is representative politics, which creates a class of professional politicians with an interest in softening extremes in  order to broaden their appeal.