The Least Examined Branch: The Role of Legislatures in the Constitutional State

doi:10.1017/CBO9780511511035

Unlike most works in constitutional theory, which focus on the role of the courts, this book addresses the role of legislatures in a regime of constitutional democracy. Bringing together some of the world's leading constitutional scholars and political scientists, the book addresses legislatures in democratic theory, legislating and deliberating in the constitutional state, constitution-making by legislatures, legislative and popular constitutionalism, and the dialogic role of legislatures, both domestically with other institutions and internationally with other legislatures. The book offers theoretical perspectives as well as case studies of several types of legislation from the United States and Canada. It also addresses the role of legislatures both under the Westminster model and under a separation of powers system.

"...This collection helpfully contains pieces from authors who dissent from the chorus of approval of legislative constitutionalism....the book captures an important element in the evolution of the scholarship on constitutionalism. I recommend this book for law and social science libraries, and to advanced students of constitutions in law schools and political science departments."
--Thomas M.J. Bateman, St. Thomas University, Fredericton, New Brunswick, Canada, The Law and Politics Book Review

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Contents

Frontmatter
pp i-iv
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Contents
pp v-viii
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Foreword: Legislatures in the Constitutional State by Amy Gutmann
pp ix-xiv
- By Amy Gutmann
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Contributors
pp xv-xviii
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New Ways of Looking at Old Institutions
pp 1-14
- By Richard W. Bauman, Professor of Law and Chair of the Management Board Centre for Constitutional Studies, University of Alberta, Tsvi Kahana, Assistant Professor of Law Queen's University, Kingston, Ontario
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PART ONE - LEGISLATURES AND DEMOCRATIC THEORY
- By Richard W. Bauman, Professor of Law, University of Alberta, Tsvi Kahana, Assistant Professor of Law, Queen's University, Ontario, Canada
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1 - Principles of Legislation
pp 15-32
- By Jeremy Waldron, University Professor in the School of Law, Columbia University
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2 - An Exact Epitome of the People
pp 33-44
- By Russell Hardin, Professor of Politics, New York University
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3 - Political Accountability, Proxy Accountability, and the Democratic Legitimacy of Legislatures
pp 45-75
- By Jane S. Schacter, James E. and Ruth B. Doyle-Bascom, Professor of Law, University of Wisconsin
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4 - Constitutionalism, Trade Legislation, and “Democracy”
pp 76-92
- By Chantal Thomas, Professor of Law Fordham University
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PART TWO - LEGISLATING AND DELIBERATING IN THE DEMOCRATIC LEGISLATURE
- By Richard W. Bauman, Professor of Law University of Alberta, Tsvi Kahana, Assistant Professor of Law Queen's University, Ontario, Canada
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5 - Legislative Judgment and the Enlarged Mentality: Taking Religious Perspectives
pp 93-124
- By Jennifer Nedelsky, Professor of Law and Political Science University of Toronto
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6 - Should We Value Legislative Integrity?
pp 125-138
- By Andrei Marmor, Professor of Law and Professor of Philosophy University of Southern California
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7 - Nondelegation Principles
pp 139-154
- By Cass R. Sunstein, Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science University of Chicago
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8 - Vox Populi: Populism, the Legislative Process, and the Canadian Constitution
pp 155-180
- By Harry Arthurs, University Professor Emeritus and President Emeritus York University
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PART THREE - CONSTITUTION MAKING BY LEGISLATURES: THE EXPLICIT VERSION
- By Richard W. Bauman, Professor of Law University of Alberta, Tsvi Kahana, Assistant Professor of Law Queen's University, Ontario, Canada
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9 - Legislatures as Constituent Assemblies
pp 181-197
- By Jon Elster, Robert K. Merton Professor of Social Sciences Columbia University
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10 - Legislatures and the Phases and Components of Constitutionalism
pp 198-213
- By Ruth Gavison, Haim H. Cohn Professor of Human Rights, Faculty of Law Hebrew University, Jerusalem
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11 - Legislatures and Constitutional Agnosticism
pp 214-228
- By Patricia Hughes, Dean and Professor of Law University of Calgary
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12 - Constitutional Amendments and the Constitutional Common Law
pp 229-272
- By Adrian Vermeule, Bernard D. Meltzer Professor of Law University of Chicago
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PART FOUR - CONSTITUTION MAKING BY LEGISLATURES: THE IMPLICIT VERSION
- By Richard W. Bauman, Professor of Law University of Alberta, Tsvi Kahana, Assistant Professor of Law Queen's University, Ontario, Canada
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13 - What Do Constitutions Do That Statutes Don't (Legally Speaking)?
pp 273-293
- By Frank I. Michelman, Robert Walmsley University Professor Harvard University
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14 - Conditions for Framework Legislation
pp 294-319
- By Elizabeth Garrett, Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science University of Southern California; Director U.S.C.–Caltech Center for the Study of Law and Politics
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15 - Super-Statutes: The New American Constitutionalism
pp 320-354
- By William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence Yale Law School, John Ferejohn, Senior Fellow Hoover Institution; Carolyn S. G. Munro Professor of Political Science Stanford University
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PART FIVE - CONSTITUTIONAL INTERPRETATION AND APPLICATION BY THE LEGISLATURE
- By Richard W. Bauman, Professor of Law University of Alberta, Tsvi Kahana, Assistant Professor of Law Queen's University, Ontario, Canada
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16 - Interpretation in Legislatures and Courts: Incentives and Institutional Design
pp 355-377
- By Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law Georgetown University
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17 - Constitutional Engagement “Outside the Courts” (and “Inside the Legislature”): Reflections on Professional Expertise and the Ability to Engage in Constitutional Interpretation
pp 378-384
- By Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law and Professor of Government University of Texas
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18 - Legislatures as Constitutional Interpretation: Another Dialogue
pp 385-395
- By Andrée Lajoie, Professor of Law Centre for Research in Public Law, University of Montreal, Cécile Bergada, Ph.D. candidate at the Faculty of Law University of Montreal, Éric Gélineau, Ph.D. candidate at the Faculty of Law University of Montreal
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19 - The Constitution and Congressional Committees: 1971–2000
pp 396-410
- By Keith E. Whittington, Professor of Politics Princeton University, Neal Devins, Goodrich Professor of Law; Professor of Government; and Director Institute of Bill of Rights Law, Marshall-Wythe School of Law, College of William & Mary, Hutch Hicken, Attorney with Litchford and Christopher Orlando, Florida
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PART SIX - IS LEGISLATIVE CONSTITUTIONALISM POSSIBLE?
- By Richard W. Bauman, Professor of Law University of Alberta, Tsvi Kahana, Assistant Professor of Law Queen's University, Ontario, Canada
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The Least Examined Branch

The Role of Legislatures in the Constitutional State

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