The Communitarian Constitution

288 Pages·2006·0.86 MB·English

by  Beau Breslin

The Communitarian Constitution
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The Communitarian Constitution
Beau Breslin
The Johns Hopkins University Press
Baltimore and London
∫ 2004 The Johns Hopkins University Press
All rights reserved. Published 2004
Printed in the United States of America on acid-free paper
Johns Hopkins Paperbacks edition, 2006
9 8 7 6 5 4 3 2 1
The Johns Hopkins University Press
2715 North Charles Street
Baltimore, Maryland 21218-4363
www.press.jhu.edu
The Library of Congress has cataloged the hardcover edition of this book
as follows:
Breslin, Beau, 1966–
The communitarian constitution/Beau Breslin.
p. cm.
Includes bibliographical references and index.
ISBN 0-8018-7782-2 (hardcover:acid-free paper)
1. Constitutional law—Philosophy. 2. Separation of powers.
3. Public interest. 4. Common good. 5. Constitutional law—United
States—Philosophy. I. Title.
K3165.B74 2003
342%001—dc21 2003006213
ISBN 0-8018-8538-8 (pbk. : alk. paper)
A catalog record for this book is available from the British Library.
For Martha and Molly
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Contents
Preface ix
1. Introduction: Communitarianism, Constitutional Visions,
and the Anti-Federalist Legacy 1
part i: Toward a Vision of Communitarian Politics
2. Theoretical and Prescriptive Foundations:
The Liberal-Communitarian Debate 31
3. Participation, Consensus, and the Common Good:
Constructing a Communitarian Polity 78
part ii: The Communitarian Constitution
4. The Constitutionalist Challenge to American Communitarianism 113
5. Communitarian Democracy: In Tension with
Constitutional Theory? 150
6. Mixed Constitutionalism and the Communitarian Hope 182
7. Conclusion: The Enduring Constitutional Debate 209
Notes 219
References 251
Index 263
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Preface
In the spring of 1861, soldiers in the Union army surrounded the Cockeysville,
Maryland, farm of John Merryman and arrested him for allegedly participat-
ing in the destruction of several railroad bridges west of Baltimore. The Union
soldiers were acting on orders from the president of the United States, who
earlier that year had suspended the constitutionally protected writ of habeas
corpus in an attempt to ‘‘preserve the union.’’ President Lincoln’s extraconsti-
tutional act stemmed from the realization that the loss of Maryland would
lead to the unraveling of the regime. If the Confederates seized control of
Maryland, he was quick to point out, the nation’s capital in Washington would
be surrounded by hostile forces. Accordingly, the president ordered his troops
to ‘‘arrest, and detain, without resort to the ordinary processes and forms of
law, such individuals as [the Union forces] might deem dangerous to the
public safety.’’∞
The problem, of course, was that the president was not entrusted with the
power to suspend habeas corpus: that authority rested with Congress by virtue
of its placement in Article I, Section 9, of the Constitution. Indeed, both
Congress and, more importantly, the federal judiciary reacted to the presi-
dent’s order by noting that such a violation of our Constitution was unprece-
dented. ‘‘The Government of the United States,’’ exhorted Chief Justice Roger
Taney, ‘‘is one of delegated and limited powers. It derives its existence and
authority altogether from the Constitution, and neither of its branches—
executive, legislative, or judicial—can exercise any of the powers of govern-
ment beyond those specified and granted.’’≤ The chief justice insisted that
the actions of the president were not explicitly granted nor assumed by the
constitutional text and thus were inconsistent with the very concept of a
written charter.
Lincoln, however, was undeterred. Merryman, although by this time largely
forgotten in the public scu∆e between the president and the chief justice, was
eventually released from prison, but not before Lincoln himself called for the