In Neglected Policies, Ira L. Strauber challenges scholars and critics of constitutional jurisprudence to think differently about the Constitution and its interpretation. He argues that important aspects of law, policies, and politics are neglected because legal formalisms, philosophical theories, the reasoning of litigators and judges, and even the role of the courts are too often taken for granted. Strauber advocates an alternative approach to thinking about the legal and moral abstractions ordinarily used in constitutional decision making. His approach, which he calls “agnostic skepticism,” interrogates all received jurisprudential notions, abandoning the search for “right answers” to legal questions. It demands that attention be paid to the context-specific, circumstantial social facts relevant to given controversies and requires a habit of mind at home with relativism.

Strauber situates agnostic skepticism within contemporary legal thought, explaining how it draws upon sociological jurisprudence, legal realism, and critical legal studies. Through studies of cases involving pornography, adoption custody battles, flag burning, federalism, and environmental politics, he demonstrates how agnostic skepticism applies to constitutional issues. Strauber contends that training in skeptical critique will enable a new kind of civic education and culture—one in which citizens are increasingly tolerant of the ambiguities and contradictions inherent in the law and politics of a pluralistic society.

Using insights from the social sciences to examine the ways constitutional cases are studied and taught, Neglected Policies will interest scholars of jurisprudence, political science, and the sociology of law.

In 2005, Iraq drafted its first constitution and held the country’s first democratic election in more than fifty years. Even under ideal conditions, drafting a constitution can be a prolonged process marked by contentious debate, and conditions in Iraq are far from ideal: Iraq has long been racked by ethnic and sectarian conflict, which intensified following the American invasion and continues today. This severe division, which often erupted into violence, would not seem to bode well for the fate of democracy. So how is it that Iraq was able to surmount its sectarianism to draft a constitution that speaks to the conflicting and largely incompatible ideological view of the Sunnis, Shi’ah, and Kurds?

 

Haider Ala Hamoudi served in 2009 as an adviser to Iraq’s Constitutional Review Committee, and he argues here that the terms of the Iraqi Constitution are sufficiently capacious to be interpreted in a variety of ways, allowing it to appeal to the country’s three main sects despite their deep disagreements. While some say that this ambiguity avoids the challenging compromises that ultimately must be made if the state is to survive, Hamoudi maintains that to force these compromises on issues of central importance to ethnic and sectarian identity would almost certainly result in the imposition of one group’s views on the others. Drawing on the original negotiating documents, he shows that this feature of the Constitution was not an act of evasion, as is sometimes thought, but a mark of its drafters’ awareness in recognizing the need to permit the groups the time necessary to develop their own methods of working with one another over time.

In The New Constitutionalism, seven distinguished scholars develop an innovative perspective on the power of institutions to shape politics and political life.

Believing that constitutionalism needs to go beyond the classical goal of limiting the arbitrary exercise of political power, the contributors argue that it should—and can—be designed to achieve economic efficiency, informed democratic control, and other valued political ends. More broadly, they believe that political and social theory needs to turn away from the negativism of critical theory to consider how a good society should be "constituted" and to direct the work of designing institutions that can constitute a "good polity," in both the economic and civic senses.

Stephen L. Elkin and Karol Edward Soltan begin with an overview of constitutionalist theory and a discussion of the new constitutionalism within the broader intellectual and historical context of political and social thought. Charles Anderson, James Ceaser, and the editors then offer different interpretations of the central issues regarding institutional design in a constitutionalist social science, consider various ways of performing the task, and discuss the inadequacy of recent political science to the job it ought to be doing. The book concludes with essays by Ted Lowi, Cass Sunstein and Edwin Haefele which apply these themes to the American regime.

This volume of seven essays on the 1987 Nicaraguan constitution does not accept a priori the judgment that Latin American constitutions are as fragile as egg shells, easily broken and discarded if found to be inconvenient to the interests of the rulers. Rather, they are viewed as being central to understanding political life in contemporary Nicaragua.

The perspectives of the analysts and their conclusions are not consensual. They prohibit glib and facile general conclusions. Some find the constitution to be nothing more than a façade for arbitrary and capricious rule; others that the document reflects clear commitments to the democratic rule of law. Thus far the implementation of the constitution has resulted in the peaceful transition of power from the Sandinistas to the National Opposition Union.