John Ferejohn

New York University | NYU · School of Law

Research suggests that American partisans are increasingly distinct in their beliefs. These strengthened partisan feelings extend to economic perceptions—as numerous scholars have shown, there is a substantial gap between the proportion of Democrats and the proportion of Republicans that believe the economy is improving. Here, we examine the extent...

The argument of this book is that cookbooks, whatever else they try to do, are political artifacts, often intentionally produced for political purposes. Even if they are innocent of political aspirations, cookbooks can nevertheless have important political effects. Kennan Ferguson’s Cookbook Politics attempts to excavate and expose the cookbook as...

The Cambridge Companion to The Federalist - edited by Jack N. Rakove March 2020

In many advanced democracies, mainstream political parties have been disrupted either by the rise of new (populist) parties or by hostile takeovers. In this article we argue that immigration attitudes have had a powerful impact on the strategic environment of political parties and leaders. We show, based on evidence from a comparative study conduct...

Deliberative democracy has been the main game in contemporary political theory for two decades and has grown enormously in size and importance in political science and many other disciplines, and in political practice. The Oxford Handbook of Deliberative Democracy takes stock of deliberative democracy as a research field, as well as exploring and c...

“Publius,” the collective author of The Federalist, was not just a polemicist and normative theorist but also a political scientist. We argue that the political psychology, and institutional predictions that comprise The Federalist are best understood as political science, because the predictions could be – and were – revised in light of “that best...

In the spirit of Jeremy Bentham's Political Tactics, this volume offers the first comprehensive discussion of the effects of secrecy and publicity on debates and votes in committees and assemblies. The contributors - sociologists, political scientists, historians, legal scholars - consider the micro-technology of voting (the devil is in the detail)...

What can we learn about democracy from the experience of post-Soviet Russia? What can we learn about the prospects for democracy in Russia from the experience of 'really existing democracies'? Must some 'pre-requisites', cultural or material, be fulfilled for democracy to become possible? This book examines the current state of Russia and the prosp...

Social evolution is one of the most rapidly developing areas in evolutionary biology. A main theme is the emergence of cooperation among organisms, including the factors that impede cooperation. Although animal societies seem to have no formal institutions, such as courts or legislatures, we argue that biology presents many examples where an intera...

It is a well-established tenet of historical political economy that modern territorial states emerged as protection rackets that extracted taxes from vulnerable communities. This paper explores a variety of bargains between communities and their “protectors” based on factors that account for vulnerability to marauding armies, such as terrain and te...

Republican political theory has been thought to have distinctive implications for law and especially for constitutional institutions and practices. A republic is supposed to pursue the common interests of its citizens and for that reason republicans have usually opposed rule by narrow groups such as monarchy or oligarchy, which would be tempted to...

This book directly engages with the relationship and differences between the key strands in contemporary republican political theory. It brings together leading international scholars representing the most important positions in republican political theory today: neorepublicanism, Kantian republicanism and populist as well as realist republicanism...

One could think that the move from authoritarian rule to parliamentary democracy would be generally favorable to legality. There are certainly many cases of authoritarian rulers who have seen courts and legal processes as threats to their powers and insisted on subservient judges, willing to permit lawless actions as required. However, not every au...

We conceptualize the modern democratic republic - which combines the somewhat contradictory elements of property rights and universal franchise - as the result of bargaining in the face of military threat. Rich democracies converged on these two foundational pillars of modern constitutionalism because of their efficiency in mobilizing societal reso...

We appreciate Dan Carpenter's thoughtful assessment of our book and are eager to respond to his reflections about the political theory of the republic of statutes. He is right that we did not discuss some highly entrenched statutory schemes that might well deserve small-c constitutional status as superstatutes. Although we do treat the Defense of M...

Dan Carpenter's massive new study of the Food and Drug Administration (FDA) is a definitive study of regulatory politics and administrative behavior destined to stand alongside other classic studies of administrative agencies, such as Herbert Kaufman's The Forest Ranger (1960) or Martha Derthick's Policy Making for Social Security (1979). Like Carp...

Any government must protect its subjects and allow them a chance to live tolerable lives. These tasks require the occasional threat of force to coordinate the actions of its citizens and officials around policies to secure these effects. A liberal democratic government asks more of itself, insisting that the people play some role in directing (poss...

Introduction We have written elsewhere of the rise of constitutional adjudication in the postwar period, especially in Europe (Ferejohn and Pasquino 2004, 2009). We emphasized in our previous work that the new institutions of constitutional adjudication were nearly always created following periods of authoritarian rule: initially in Germany and Ita...

This chapter specifies the institutional conditions for an autonomous judiciary. It seeks to address the question: When will judges act independently of elected officials? We argue that when the executive and legislative branches are united against the courts, the courts have few resources with which to defend an independent course. In contrast, wh...

A modern democracy is conducted by a small body of elected officials who make the laws and control the state. This fact has been taken by some to mean that modern democracy is really a kind of elite rule. In its strong form, this claim implies that modern democratic governments pursue the interests of an elite or aristocracy; the weak form claims n...

William Eskridge and John Ferejohn propose an original theory of constitutional law whereby, while the Constitution provides a vision, our democracy advances by means of statutes that supplement or even supplant the written Constitution. © 2010 by William N. Eskridge Jr. and John Ferejohn. All rights reserved.

Engineering and architectural metaphors recur in discussions of constitutionalism by both political scientists and law professors. The dominant image is one of architects who design a constitution, which is then constructed or built according to the design. These metaphors have largely, supplanted the older Aristotelian metaphor of a constitution a...

Many believe that the government bears an active role and responsibility on how wealth and income are generated and distributed. With the rapid increase in income inequality in a number of the advanced democracies, it has now become a concern on whether or not this should be considered as a threat. This chapter first examines what types of equality...

The Oxford Handbook of Comparative Politics offers a critical survey of the field of empirical political science through the collection of a set of articles written by forty-seven scholars in the discipline of comparative politics. Part I includes articles surveying the key research methodologies employed in comparative politics (the comparative me...

Since the time of Ancient Athens, students of democracy have been skeptical that elections are a way of implementing democracy, at least if democracy requires something like government “by” the people rather than “of ” or “for” them. There are several grounds for this skepticism: first, elections may select unusual people – better, more able, or me...

This article describes the main conceptual questions entailed in the doctrine of emergency powers, taking into account the theory and experience of their enforcement. It explains the constitutional aspects of emergency powers and evaluates the possibility of thinking about the position and force emergency powers play within a polyarchical constitut...

During a career spanning over thirty years Philip Pettit has made seminal contributions in moral philosophy, political philosophy, philosophy of the social sciences, philosophy of mind and action, and metaphysics. His many contributions would be remarkable enough in themselves, but they are made all the more remarkable by the ways in which Pettit c...

There is a vast literature on default rules in the law of contract and commercial relations. The question explored here is whether "default rule thinking" can enlighten the theory or practice of constitutional law. The first part expresses skepticism. The very notion that public officials may change or override certain constitutional protections ma...

Unlike most works in constitutional theory, which focus on the role of the courts, this book, first published in 2006, addresses the role of legislatures in a regime of constitutional democracy. Bringing together some of the world's leading constitutional scholars and political scientists, the book addresses legislatures in democratic theory, legis...

The Constitution establishes the judiciary as a co-equal department of the federal government and protects its members from political interference by granting them life tenure and prohibiting Congress from reducing their salaries. Yet Congress is free to decide whether to create lower federal courts at all, to define their jurisdiction narrowly or...

Modern democracies are governed by elected elites providing only limited opportunities for a popular role in government. In Lincoln's terms they are governments "of" but not in any sense "by" the people. The central democratic justification of such governments is that they tend to work tolerably well "for" the people, at least compared to feasible...

There is a gap between much of the theorizing about the democratic peace, with its focus on democracies' internalization of costs of war, and the empirical evidence, which finds that democracies are pacifistic only towards each other. Drawing on the insights of Machiavelli and the classical thinkers on whom he relied, we offer a theory of democrati...

It is hard to think of a political system that does not trumpet its commitment to "the rule of law," based on the principle that citizens are better off when the political system establishes rules for all to follow, rather than subjecting citizens either to arbitrary rule or to anarchy1. By entrusting the interpretation and enforcement of laws to l...

Introduction: Should the social sciences focus more than they now do on solving real (explanatory) problems and less on developing methodologies or pursuing methodological programs? Two distinct worries animate this question. One is that too many resources may be devoted to the development and refinement of methodologies and theories, while too lit...

One of the most remarkable political developments of the twentieth century has been the development of constitutional democracy in Europe after World War II. The defeated powers in the western part of the continent adopted new constitutions that embraced notions of individual rights and limited government. It is difficult to overstate how fundament...

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Rule of law and democracy are both desirable attributes of a political system. Scholars writing of democratic transitions from authoritarian rule usually argue that the goal of such a transition is the establishment of democracy with the rule of law, implying that both may be achieved simultaneously. Perhaps that is so. What is often meant by rule...

Since WWII there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. It is no surprise that appointments to both the US Supreme Court and to other federal courts have become partisan political issues. Ferejohn argues that what is at stake, institutionally, is the allocation of l...

In the Common Mind, Pettit argues that rational choice theory cannot provide genuine causal accounts of action. A genuine causal explanation of intentional action must track how people actually deliberate to arrive at action. And, deliberation is necessarily enculturated or situated . . . we take human agents to reason their way to action, using th...

Many commentators believe that judicial independence and democratic accountability stand in irreconcilable tension with each other. Professors Ferejohn and Kramer suggest that these competing ideals are not themselves goals, but rather are means to a more important end: a well-functioning system of adjudication. Either or both may be sacrificed in...

En este artículo, el autor analiza el profundo cambio que en la distribución del poder se hasuscitado a nivel mundial. Este cambio consiste en una transformación en el papel que jueganlos tribunales y jueces en la judicialización de la política ¿la mayor participación de juecesy tribunales en asuntos políticos¿ y de los actores políticos en la poli...

The most interesting issues of public law (for us) are those relating to institutional design and function. When thinking about statutory interpretation, judicial review, and legislative and administrative procedures, it is useful to have a theory about how the governmental system works in our regulatory state, how it breaks down, and how it leads...

The collapse of the communist empire coincided with a new wave of constitution making. All the Eastern European countries included in their new constitutions an organ in charge of constitutional adjudication that is modeled on what we define below as the Kelsenian type. This was neither surprising nor original. The same phenomenon occurred in South...

Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and little effect on the law beyond the years for which they apportion public monies! Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or repr...

Part I. Constitutional Democracy: Beginnings and Traditions: Editors' introduction 1. Constitutional problematics, circa 1787 Jack N. Rakove 2. Inventing constitutional traditions: the poverty of fatalism James Johnson 3. The birth logic of a democratic constitution Lawrence G. Sager Part II. Constitutional Structure and Design: 4. Constitutional d...

This volume investigates the nature of constitutional democratic government in the United States and elsewhere. The editors introduce a basic conceptual framework which the contributors clarify and develop in eleven essays organized into three separate sections. The first section deals with constitutional founding and the founders' use of cultural...

O artigo sustenta que já existe uma conexão próxima na teoria política entre projetos normativos e positivos. Afirma que os autores que tradicionalmente trabalham com teoria política de forma normativa partiram de pressupostos de racionalidade, tanto porque pretendiam convencer uma audiência composta de indivíduos que presumivelmente seriam suscetí...

This book provides a comparative analysis of environmental regulation in multi-jurisdictional legal and political systems, focusing on the United States, the European Union, and the international community. Each of these systems must deal with environmental interdependencies that cross local borders. Some transjurisdictional environmental problems...

Ferejohn contrasts two interpretations of English parliamentary “elections” in the early seventeenth century. The “Whig” interpretation, based on the increasing incidence of competition between candidates, is similar to that which we might offer for many elections in contemporary democracies. It focuses on competition between representatives of dis...

This book examines whether the mechanisms of accountability characteristic of democratic systems are sufficient to induce the representatives to act in the best interest of the represented. The first part of the volume focuses on the role of elections, distinguishing different ways in which they may cause representation. The second part is devoted...