Pub Date : 2008-04-10DOI: 10.1093/acprof:osobl/9780199930319.003.0008
Ganesh Sitaraman
Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary.This Note explores this interconnection, showing how constitutional design and counterinsurgency can influence each other. Part II argues that counterinsurgency is a form of constitutional design. Counterinsurgents have considerable influence over who participates in the constitution-making process. In addition, because counterinsurgency operations can significantly change ground-level power dynamics, and thus the probability of ratification, counterinsurgency may indirectly constrain or expand constitutional design possibilities. Finally, counterinsurgents seek to build a legitimate, stable order within society and to enable public power - elements of what scholars consider the informal constitution of a state. Part III argues that constitutional design can be a form of counterinsurgency. If a constitution is designed with the goals, lessons, and elements of counterinsurgency in mind, the constitution may actually facilitate and accelerate the realization of the counterinsurgent's goals. Part III first provides reasons for including counterinsurgency-inspired design structures in constitutions and then presents examples of such structures. Part IV concludes.
{"title":"Counterinsurgency and Constitutional Design","authors":"Ganesh Sitaraman","doi":"10.1093/acprof:osobl/9780199930319.003.0008","DOIUrl":"https://doi.org/10.1093/acprof:osobl/9780199930319.003.0008","url":null,"abstract":"Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary.This Note explores this interconnection, showing how constitutional design and counterinsurgency can influence each other. Part II argues that counterinsurgency is a form of constitutional design. Counterinsurgents have considerable influence over who participates in the constitution-making process. In addition, because counterinsurgency operations can significantly change ground-level power dynamics, and thus the probability of ratification, counterinsurgency may indirectly constrain or expand constitutional design possibilities. Finally, counterinsurgents seek to build a legitimate, stable order within society and to enable public power - elements of what scholars consider the informal constitution of a state. Part III argues that constitutional design can be a form of counterinsurgency. If a constitution is designed with the goals, lessons, and elements of counterinsurgency in mind, the constitution may actually facilitate and accelerate the realization of the counterinsurgent's goals. Part III first provides reasons for including counterinsurgency-inspired design structures in constitutions and then presents examples of such structures. Part IV concludes.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2008-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60654896","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Regulating eugenics.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27481370","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Constitutional law--substantive due process--en banc D.C. Circuit rejects fundamental right to experimental medications.--Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007)(en banc), cert. denied, 128 S. Ct. 1069 (2008).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2008-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27481371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Public-private partnerships and insurance regulation.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27408549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Employment law--Title VII--Eighth Circuit holds that benefits plans excluding all contraceptives do not discriminate based on sex.--In re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007), reh'g and reh'g en banc denied, No. 06-1706 (8th Cir. May 23, 2007).","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27408551","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Developments in the law: the law of mental illness.","authors":"","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2008-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"27333454","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
What are people able to do and to be? And are they really able to do or be these things, or are there impediments, evident or hidden, to their real and substantial freedom? Are they able to unfold themselves or are their lives, in significant respects, pinched and starved? What about their environment--material, social, and political? Has it helped them to develop their capacities to be active in important areas of life? If people are like Pindar's vine tree, is their environment more like a rich soil tended by wise and just gardeners, or more like an arid soil tended by indifferent gardeners, or gardeners with a restricted conception of their task? More specifically, to focus on just one part of our larger question that touches on constitutional law: How have the basic constitutional principles of a nation, and their interpretation, promoted or impeded people's abilities to function in some central areas of human life? Does the interpretation of constitutional entitlements yield real abilities to choose and act, or are the constitution's promises more like hollow verbal gestures? The idea that all citizens in a nation are equally entitled to a set of substantial preconditions for a dignified human life has had a lasting appeal over the centuries in Western political and legal thought--less because intellectuals have favored it than because it has great resonance in the lives of real people. Appealing though the idea is, however, many things can go wrong when a nation sets up and interprets political principles that define citizens' basic entitlements. Often, in one way or another, citizens are less like substantially free people, who can choose to act in the ways most pertinent to human dignity, than like prisoners, unable to select modes of activity that are central to a life worthy of human dignity. This happens most obviously when a regime represses choice across the board, curtailing many of the entitlements that are traditionally thought central to such a life. Sometimes, however, imprisonment is only partial. It does not extend across the entire range of central entitlements, and yet citizens are like prisoners in at least some areas of life--as, for example, when a regime that supports some central opportunities curtails the freedom of religion or the freedom of speech. Sometimes, imprisonment is partial in a different way: only certain groups are affected. Some (privileged) people are free to select the core set of valuable functions, while other people are not--as, for example, when a hierarchical constitution accords basic entitlements to men and not to women, to whites and not to blacks, to the rich and not to the poor. Sometimes, these two types of partial imprisonment intersect, as when a regime treats blacks and whites, women and men, equally with respect to voting rights, but denies them equal educational or employment opportunities. Sometimes, imprisonment is subtle, almost hidden: the words in a nation's constitution may be prom
{"title":"Foreword: Constitutions and Capabilities: \"Perception\" against Lofty Formalism","authors":"M. Nussbaum","doi":"10.4324/9781315251240-7","DOIUrl":"https://doi.org/10.4324/9781315251240-7","url":null,"abstract":"What are people able to do and to be? And are they really able to do or be these things, or are there impediments, evident or hidden, to their real and substantial freedom? Are they able to unfold themselves or are their lives, in significant respects, pinched and starved? What about their environment--material, social, and political? Has it helped them to develop their capacities to be active in important areas of life? If people are like Pindar's vine tree, is their environment more like a rich soil tended by wise and just gardeners, or more like an arid soil tended by indifferent gardeners, or gardeners with a restricted conception of their task? More specifically, to focus on just one part of our larger question that touches on constitutional law: How have the basic constitutional principles of a nation, and their interpretation, promoted or impeded people's abilities to function in some central areas of human life? Does the interpretation of constitutional entitlements yield real abilities to choose and act, or are the constitution's promises more like hollow verbal gestures? The idea that all citizens in a nation are equally entitled to a set of substantial preconditions for a dignified human life has had a lasting appeal over the centuries in Western political and legal thought--less because intellectuals have favored it than because it has great resonance in the lives of real people. Appealing though the idea is, however, many things can go wrong when a nation sets up and interprets political principles that define citizens' basic entitlements. Often, in one way or another, citizens are less like substantially free people, who can choose to act in the ways most pertinent to human dignity, than like prisoners, unable to select modes of activity that are central to a life worthy of human dignity. This happens most obviously when a regime represses choice across the board, curtailing many of the entitlements that are traditionally thought central to such a life. Sometimes, however, imprisonment is only partial. It does not extend across the entire range of central entitlements, and yet citizens are like prisoners in at least some areas of life--as, for example, when a regime that supports some central opportunities curtails the freedom of religion or the freedom of speech. Sometimes, imprisonment is partial in a different way: only certain groups are affected. Some (privileged) people are free to select the core set of valuable functions, while other people are not--as, for example, when a hierarchical constitution accords basic entitlements to men and not to women, to whites and not to blacks, to the rich and not to the poor. Sometimes, these two types of partial imprisonment intersect, as when a regime treats blacks and whites, women and men, equally with respect to voting rights, but denies them equal educational or employment opportunities. Sometimes, imprisonment is subtle, almost hidden: the words in a nation's constitution may be prom","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2008-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70640642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Medical self-defense, prohibited experimental therapies, and payment for organs.","authors":"Eugene Volokh","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26758145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2007-05-01DOI: 10.4324/9781315702094-11
B. Ackerman
I. LECTURE ONE: ARE WE A NATION? The telephone rang, and a familiar conversation began: since 1989, the State Department had been badgering me to serve on delegations to advise one or another country on its constitutional transition to democracy. I had refused, and refused, and refused: no junketing for me, no ignorant professing in front of politicians I did not know on countries I barely understood. But once again, I heard an earnest midwestern voice at the end of the line, speaking self-importantly in the name of the Special Assistant to the Assistant to the Deputy Assistant Secretary of State. This time, he assured me, it was going to be completely different. The State Department wasn't asking me to help write a constitution in a language I couldn't read. It was inviting me to engage in a one-on-one tutorial with the great Akhil Alfarabi, a master of both the European and Islamic legal traditions, who was eager to extend his understanding to American constitutional law. Nothing but mutual enlightenment, the cheery voice guaranteed: it was past time to bridge the fearsome cavern separating the great legal systems of the world. And they were asking only for a week of my time. Why not? I asked, and I soon found myself, jetlagged, encountering a smiling Alfarabi at an undisclosed location. After drinking endless cups of tea, we began serious conversation where I always begin: with the written Constitution, starting from the words "We the People" and working our way to the end of the text. Alfarabi fulfilled my fondest expectations. He was a master of the art of elaborating profound legal principles out of lapidary texts and listened intently as I presented the famous words left behind by the American Founding and Reconstruction. A couple of days of joyful conversation passed, and we finally moved into our final lap: the texts of the twentieth century. But Alfarabi was getting impatient, and a bit resentful, at my treating him like a brilliant first-year student. "How about changing roles," he suggested, "and letting me take the lead in interpreting the last few constitutional amendments?" Truth to tell, I was a bit doubtful: for all his learning, he didn't have the foggiest idea of American history. But after all, I didn't have any idea of his country's history, and that hadn't stopped us from engaging in some great conversation. "Why not?" I asked myself, glimpsing the ghost of John Dewey (1) enthusiastically nodding his approval: "We have reached the Twenty-First Amendment. What do you think it means?" "Well, the year is 1933, and Franklin Roosevelt is coming into office--he's the one who announced the New Deal, no?" I nodded enthusiastically, as is my habit, and was greatly relieved to learn that the guy knew more about my country's history than I knew of his. "And looking at the amendment," said Akhil, "I can see precisely why they call it the New Deal. I find it deeply regrettable that the American people repealed the ban on the consumption
{"title":"The living Constitution","authors":"B. Ackerman","doi":"10.4324/9781315702094-11","DOIUrl":"https://doi.org/10.4324/9781315702094-11","url":null,"abstract":"I. LECTURE ONE: ARE WE A NATION? The telephone rang, and a familiar conversation began: since 1989, the State Department had been badgering me to serve on delegations to advise one or another country on its constitutional transition to democracy. I had refused, and refused, and refused: no junketing for me, no ignorant professing in front of politicians I did not know on countries I barely understood. But once again, I heard an earnest midwestern voice at the end of the line, speaking self-importantly in the name of the Special Assistant to the Assistant to the Deputy Assistant Secretary of State. This time, he assured me, it was going to be completely different. The State Department wasn't asking me to help write a constitution in a language I couldn't read. It was inviting me to engage in a one-on-one tutorial with the great Akhil Alfarabi, a master of both the European and Islamic legal traditions, who was eager to extend his understanding to American constitutional law. Nothing but mutual enlightenment, the cheery voice guaranteed: it was past time to bridge the fearsome cavern separating the great legal systems of the world. And they were asking only for a week of my time. Why not? I asked, and I soon found myself, jetlagged, encountering a smiling Alfarabi at an undisclosed location. After drinking endless cups of tea, we began serious conversation where I always begin: with the written Constitution, starting from the words \"We the People\" and working our way to the end of the text. Alfarabi fulfilled my fondest expectations. He was a master of the art of elaborating profound legal principles out of lapidary texts and listened intently as I presented the famous words left behind by the American Founding and Reconstruction. A couple of days of joyful conversation passed, and we finally moved into our final lap: the texts of the twentieth century. But Alfarabi was getting impatient, and a bit resentful, at my treating him like a brilliant first-year student. \"How about changing roles,\" he suggested, \"and letting me take the lead in interpreting the last few constitutional amendments?\" Truth to tell, I was a bit doubtful: for all his learning, he didn't have the foggiest idea of American history. But after all, I didn't have any idea of his country's history, and that hadn't stopped us from engaging in some great conversation. \"Why not?\" I asked myself, glimpsing the ghost of John Dewey (1) enthusiastically nodding his approval: \"We have reached the Twenty-First Amendment. What do you think it means?\" \"Well, the year is 1933, and Franklin Roosevelt is coming into office--he's the one who announced the New Deal, no?\" I nodded enthusiastically, as is my habit, and was greatly relieved to learn that the guy knew more about my country's history than I knew of his. \"And looking at the amendment,\" said Akhil, \"I can see precisely why they call it the New Deal. I find it deeply regrettable that the American people repealed the ban on the consumption ","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":null,"pages":null},"PeriodicalIF":3.4,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70435137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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