Civil War, Ceasefire, Constitution: Some Preliminary Notes

“Civil War, Ceasefire, Constitution: Some Preliminary Notes” (2012) 33 Cardozo Law Review 1907-21.

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Michel Rosenfeld, in The Identity of the Constitutional Subject, observes that historically, the transition from authoritarian rule to constitutional democracy has involved violent breaks with the past. But violence poses a special challenge to the very idea of constitutional government, because above all, the basic mission of a constitution is to channel political conflict and disagreements that would otherwise spill into the streets and be settled through force or fraud, into institutions that operate peacefully according to the rule of law and reach decisions that members of a political community accept as authoritative. We should not be surprised that the link between violence and moments of constitutional design has been rendered largely invisible to contemporary constitutional theory. Yet in a large number of cases, constitutions have marked the end of civil wars between domestic actors. The question I want to pose is how should the presence of civil war reorient contemporary debates about constitutional design?