Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance

Abstract

AbstractOver the last three decades, international lawyers and institutions have come to understand constitution-making as an accepted technique of international law and a means of delivering peace and security. In defending this technique from its critics, scholars have drawn on a particular tradition of constitution-making that understands constitutionalism as a lawful form of international action, realizable through a set of formal practices, and juridically distinct from material concerns. This Article explores the building of this tradition through the work of legal scholars within the United States in conversation with German and Jewish émigré scholars and argues that reimagining constitutionalism for the coming decades requires rethinking this separation between the juridical and the material, as well as asking what constitutionalism demands of the laws governing the global economy.