Severing Unconstitutional Amendments
Thanks to John Brinkerhoff, Abbe Gluck, Ted Lee, Daryl Levinson, Scott Levy, and Mike Showalter for helpful comments and conversations. Thanks also to the careful editors at the University of Chicago Law Review. All errors are our own.
- Share The University of Chicago Law Review | Severing Unconstitutional Amendments on Facebook
- Share The University of Chicago Law Review | Severing Unconstitutional Amendments on Twitter
- Share The University of Chicago Law Review | Severing Unconstitutional Amendments on Email
- Share The University of Chicago Law Review | Severing Unconstitutional Amendments on LinkedIn
For helpful comments on earlier drafts, many thanks to Tomiko Brown-Nagin, Jessica Bulman-Pozen, Christine Desan, Einer Elhauge, Elizabeth F. Emens, Marie-Amélie George, Noah Glass, Jeffrey Gordon, Annette Gordon-Reed, Jamal Greene, Ariela J. Gross, Hendrik Hartog, Bert I. Huang, Freya Irani, Olatunde C. Johnson, Jeremy Kessler, Ryan Liss, Kenneth W. Mack, Jane Manners, Henry P. Monaghan, Shaun Ossei-Owusu, Christina Duffy Ponsa-Kraus, Vlad Perju, David Pozen, Alex Raskolnikov, Martha A. Sandweiss, Carol Sanger, Matthew A. Shapiro, Emily Stolzenberg, Sarah L. Swan, Sean Wilentz, and Rebecca E. Zietlow, as well as the editors of The University of Chicago Law Review and participants in the Columbia Law School Associates and Fellows Workshop, the Harvard Legal History Workshop, and the American Society for Legal History.
In the midst of a New England winter long ago, young people of Boston filed into a drafty meeting hall up the road from the harbor. They had assembled on that January morning in 1839 for the seventh annual meeting of the New England Anti-Slavery Society.
Political sociologist Claus Offe has diagnosed the participatory deficit in North Atlantic democracies as the product of an imbalance in state–market relations. When the market is supreme, public policy can do little to constrain the market’s ever-expanding realms.
Research for this Essay was conducted while the author was Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization, Harvard Law School, Spring 2017. She would like to thank the members of the Group on Autocratic Legalism (GOAL) at Harvard Law School, particularly Cem Tecimer, Isabel Roby, and Jakub Jozwiak for their excellent research assistance on Turkey, Venezuela, and Poland, respectively, as well as Mark Tushnet, Vicki Jackson, Scott Brewer, Oren Tamir, and others who attended these sessions for providing both a sounding board and new cases to consider. For valuable research assistance on Hungary, she would also like to thank Panna Balla of Harvard Law School and Cassie Emmons and Miklós Bánkuti, currently and formerly of Princeton. She also appreciates the daily counsel of Jan-Werner Müller, Dan Kelemen, Laurent Pech, Dimitry Kochenov, Tomasz Koncewicz, and Gábor Halmai for constant exchanges on these topics in real time. And she thanks participants in the symposium organized by Tom Ginsburg and Aziz Huq on The Limits of Constitutionalism, as well as the editors of The University of Chicago Law Review for insightful suggestions.
By now, we know the pattern: A constitutional democracy, flawed but in reasonably good standing, is hit by a transformative election.