Foundation and Revolution: Hannah Arendt and the Problem of Legitimacy and Stability in Constitutional Consolidation

This chapter investigates the relations of revolutionary consolidation to the American constitutional founding. The concepts of consolidation and augmenta- tion have received little attention in relation to the central question of constitutional legitimacy. Hannah Arendt’s theory of revolution is paradigmatic in this respect. Notwithstanding her influential discussion of foundation, Arendt gives relatively little attention to the pragmatic role of consolidation in acts of constitutional founding. Further, scholarly analyses of Arendt on revolution rarely offer critiques of her concept of foundation in this respect. I focus on Arendt partly owing to her influential theories regarding founding of bodies politic and partly because I believe that within her political thought on what for her was the uniquely success- ful consolidation of the American Revolution lies an explanation for that success that she herself does not expressly offer. Further, Arendt’s thinking may be a useful launchpad in considering the dynamics of founding moments

A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

This book is the only comprehensive treatment of the history and controversies, the law and theories, about U.S. state supreme court advisory opinions. This significant but little studied area of state constitutional law has no parallel in federal law (which bars federal courts from giving advisory opinions). Just ten states permit such advising (many others have rejected it), but advisory opinions have been attacked because they clash with fundamental doctrines of American constitutionalism, including separation of powers, due process, judicial review, judicial independence, and, especially, judicial supremacy. This book offers a narrative of the attacks on state supreme court advisory opinions, telling how the law of advisory opinions arose in response to the attacks, resulting in an elaborate but not entirely successful jurisprudence of advisory opinions. This book tells of the attempts to adopt and defend advisory opinions, including New Deal-era proposals to amend the U.S. Constitution to require the U.S. Supreme Court to issue them. It tells also of the persistent and uneasy relation between advisory opinions and the power of judicial review (arguing that advising is in fact a distinct political power in its own right), and tells as well of their effects on judicial independence and the ways that they reinforce judicial supremacy