Frederick Schauer

Constitutionalism and Coercion

PUBLISHER
Boston College Law Review
DATE
2013
 

Abstract

A common understanding of constitutionalism sees a constitution as a device for keeping self-serving, corrupt, misguided, incompetent, power-hungry, or otherwise bad officials from doing bad things. But an alternative vision of constitutionalism recognizes the role of a constitution in imposing second-order constraints on the well-intended and often wise policies and decisions of even good officials, and doing so in the service of a range of longer-term values often likely to be slighted given the incentives of day-to-day politics and policy making. Using a series of prominent Supreme Court cases as a springboard, this Article, the written version of the Clough Distinguished Lecture in Jurisprudence at Boston College Law School, develops this alternative vision of constitutionalism and the role of a constitution. The Article then suggests that such a role for a constitution is especially in need of strong devices for coercive enforcement of constitutional constraints, stronger than those commonly in place in the United States today.
 

Citation

Frederick Schauer, Constitutionalism and Coercion, 54 Boston College Law Review 1881-1908 (2013).
 

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