Constitutionalism

Constitutionalism Beyond State (International Conference Beyond the State. Paris. International Society of Public Law)

• State-centric constitutionalism is rooted in the Rousseauist theory of a monistic, indivisible popular sovereignty that imagines a self-contained political sphere standing over, yet abstracted from, social plurality. Rousseau’s core postulates (unified sovereignty, artificial community, and mistrust of corps intermédiaires) compressed the private-public space. Yet two centuries of French experience reveal a structural impasse: whenever the State seeks either to absorb or to discipline “society”—whether through neutralité, laïcité or administrative centralism—pressures soon build for relaxation, only to be followed by renewed compression. Successive correctives—Constant’s liberal pluralism, Tocqueville’s associational constitutionalism, Durkheim’s functional differentiation, Hauriou’s institutional pluralism, plus waves of rights adjudication and decentralization—have mitigated, but never dismantled, the State’s monopoly on legitimacy and resource allocation.

  The twenty-first century has aggravated this legacy. Externally, globalized digital capitalism has unleashed borderless, democracy-unconstrained private powers that now legislate, enforce, and adjudicate through code beyond public-law reach; internally, the representative structures that anchored constitutional legitimacy hollow out as parties fade, electorates fragment, and populism polarizes. These twin pathologies erode the universality and accountability on which constitutionalism depends. This raises a pivotal question: does “society” itself now wield constitutional force, and if so on what terms? Descriptively, many functional domains—platform governance, high-frequency finance, scientific peer regulation—already perform constitutional tasks. Normatively, the answer turns on which core purpose of a constitution one privileges. If factual efficacy and polycentric governance take precedence, plural “social constitutions” will be acknowledged. If democratic legitimacy and justiciability are paramount, those social norms must first be re-constitutionalized—public-law constraints embedded—before any full constitutional status is granted. A new model of multilayered constitutionalism may offer insights into reconciling factual polycentrism with democratic legitimacy in today’s fragmented order.

Lincoln: The Making of a Statesman and His Constitutional Vision (Historical Biography, Capstone)

• Rather than recounting Abraham Lincoln's life as a sequence of events, this historical biography traces the evolution of his political thought and statesmanship. It examines how personal experience, legal practice, partisan conflict, and ultimately the Civil War reshaped his understanding of liberty, equality, citizenship, constitutional government, federalism, and nation-building. Organized around Lincoln's intellectual and political development of his views, the biography explores how successive national crises compelled him to reinterpret the principles on which the American republic rested.

  Particular attention is given to Lincoln's leadership under crisis—his decision-making under uncertainty, the exercise of wartime executive power, the management of divided public opinion, and his continual effort to balance constitutional principle with political necessity. At its core, the biography investigates how Lincoln navigated the tension between constitutional limits and constitutional flexibility, executive authority and republican institutions, state sovereignty and the preservation of the Union. It argues that Lincoln's greatest achievement lay not only in saving the Union but also in redefining the constitutional and moral foundations of the American republic.

U.S. Presidency and Congress, and Intellectual Foundations in History of Political Philosophy

• I investigate democratic sovereignty under constitutional emergency by studying Lincoln’s Civil War presidency. The project asks how presidents may legitimately exercise extraordinary powers during national crises, and under what conditions they remain accountable to Congress and the Constitution.

  I frame the tension between constitutional legality and republican survival within a broader debate on sovereignty and emergency powers, drawing on Bodin-Rousseau tradition, Schmitt, and the actions and discourse of the U.S. Presidency and Congress. The study focuses on Lincoln’s most controversial wartime actions—including the blockade of Confederate ports, the suspension of habeas corpus, and the Emancipation Proclamation—which stretched, and arguably exceeded, the president’s explicit constitutional authority. Lincoln himself acknowledged this tension when he asked whether “all the laws, but one, [should] go unexecuted, and the government itself go to pieces, lest that one be violated” in his 1861 Special Message, implicitly invoking what Bodin and Rousseau termed “dictatorial powers”.

  The project addresses two questions. First, in a crisis threatening national survival, how can a president claim to act on behalf of the people without usurping popular sovereignty? Second, how did Congress and the courts reconstitutionalize Lincoln’s controversial emergency measures? These questions illuminate the theoretical and institutional distinction between legitimate emergency authority exercised in defense of constitutional government and the transformation of the president into an unconstrained sovereign that ultimately undermines democratic institutions.

  In discussing the Roman office of dictatorship, Rousseau argued that extraordinary powers may be justified when the inflexibility of laws endangers the public good in times of crisis. Still, only if such powers are institutionalized, temporary, and prohibited from altering the fundamental laws (The Social Contract 4:6). Examining Ex parte Merryman, Prize Cases, First and Second Confiscation Acts, 1863 Habeas Corpus Suspension Act, and Ex parte Milligan, I argue that, grounded in Rousseau’s presupposition that in a crisis. However, the sovereign authority, regarded as the exercise of people’s will (SC 2:1), has been suspended; the general will has not (SC 4:6). Extraordinary powers can be legitimate only when directed toward the common good (here preserving the political community) and subject to strict limits.

  The dilemma of the relationship between sovereignty and “dictatorial powers” lies in the fact that the sovereign people have a unique and generally inviolable character, but a singular moment in the Social Contract happens when the dictator suspends the sovereign authority upon rising to power. Rousseau maintained, “sovereignty … is nothing but the exercise of the general will” (SC 2:1). The sovereign authority has been suspended insofar as the people are not actively implementing the general will. This has been temporarily delegated to the dictator. The fundamental question is how a dictator can act on the general will in place of the people. In cases where the republic’s very existence is in question, “the general will is not in doubt, it is obvious that the people’s foremost intention is that the State not perish” (SC 4:6). That is, the dictator need not consult the people. He knows the content of the general will. He must do what is necessary to save the republic.

  Portraying Lincoln as a statesman with Cincinnatian republican virtue like Washington, I examine the extent to which he exercised extraordinary powers and to which he subsequently sought congressional authorization and reincorporation of those measures into the ordinary constitutional order. Lincoln’s emergency actions gained legitimacy within the republican constitutional system because Congress, through legislative authorization, ratification, funding, definition of war objectives, and post-event standardization, continuously bound the president’s actions back to the institutional relationship between Article I and Article II, with the president ultimately returning the decision to the institutionalized political process. This theoretical framework understands the state of exception as a constrained and temporary mechanism for preserving republican order, rather than as Schmitt’s celebration of a sovereign unconstrained by law. Finally, this study sheds light on understanding the controversies surrounding presidency, Congress, and accountability mechanisms in Trump v. United States and Trump v. Anderson as contemporary repercussions. This topic addresses how free societies can defend themselves without undermining the constitutional principles they seek to preserve and contributes to dialogue about today’s democratic resilience.

Republicanism, Democratic Theories, History of Political Thought

Representation and Sovereignty in Rousseau (Recent Paper)

• There is an intrinsic tension between two principles in Rousseau’s idea of social contract: the principle of public autonomy and the principle of private autonomy. This tension stems from Rousseau’s fundamental premise that citizens are at once the Sovereign and the subjects of the law. The identification of these two positions was later contested and arguably separated in different historical and institutional contexts. I’d like to examine the nature of this theoretically inherent tension by exploring how the concept of popular sovereignty was interpreted, adapted, or resolved by political thinkers in response to specific political realities. In particular, I will analyze three moments in which this problem was explicitly addressed: the text of the Declaration of 1789, Abbé Sieyès’s treatment in the 1793 French constitutional debates, and Benjamin Constant’s critique of Rousseau’s conception (if time allowed, the debates over constituent power and representation during the Weimar constitutional crisis).

  This question invites us to think of where political legitimacy originates and who truly possesses sovereignty when investigating diverse opinions on the manner of forming a national will. It mainly examines the nature of representation, asking whether representative institutions are legitimate organs to exercise sovereignty on behalf of (or, in place of) the people. By examining the gap between Rousseau’s claim that “the general will cannot be represented” (Social Contract, 3:15) and historical institutional practices, it seeks to explain why certain adaptations became necessary in response to modern political realities; it raises the question of whether the morally grounded universalism articulated in the Declaration points, if not to an objective purpose, at least to an affirmation of human dignity. Ultimately, this inquiry can deepen our understanding of key debates surrounding representation, the separation of legislative and executive power, and the delegation and unity of sovereignty.

  I expect the project to clarify appropriate institutional means through which the mass electorate of a modern state can exercise fundamental legislative power, and why such mechanisms, though extending beyond Rousseau’s original framework, became necessary to accommodate modern political realities. It will also offer a clearer conceptual account of three interacting categories: the individual (“man”/ “homme”) as subject of presupposed rights, sovereignty as the voluntary assembly, by delegation, of individual wills (the latter respectively refers to, “the general will” in Rousseau, and in the Declaration of 1789, art. 6, and to “the common will” in Abbé Sieyès), and the citizen as the subject of certain rights recognized and limited by sovereign authority, which cannot violate human rights (“les droits de l’homme”). Examining these relationships may illuminate the intrinsic tension between public autonomy and private autonomy, reflecting the tension between liberal limits on the state and republican extension of popular sovereignty, and explore whether these tensions can be reconciled or more coherently understood. Finally, the study may shed light on the historical development of natural rights and sovereignty as a process through which normative rights gradually align with legal institutions and political practice.

AI Governance and Ethics

AI Alignment, AI Ethics (1st International Conference on Large-Scale AI Risks. KU Leuven)

• Navigating Epistemic Gaps and Ethical Risks in AI Alignment: A Pluralistic Approach to Human Values

  The large-scale ethical risks of AI center on its potential divergence from human values, which could lead to misunderstandings or an inability to navigate the complexity of moral decision-making. The alignment issue concerns whether AI can accurately understand and implement human moral intentions and how to identify suitable ethical guidelines in cross-cultural, cross-value contexts. The risks include: 1) Misalignment, where AI diverges from intended human goals; 2) Value conflict, arising from differing ethical frameworks across cultures; and 3) Capability exceedance, where AI surpasses human control, leading to unpredictable actions. These risks are exacerbated by the challenge of defining universally accepted moral principles, particularly in a world characterized by cultural and ideological diversity.

  Human technology and moral frameworks are not equipped to address the behavior of AI systems operating with high autonomy and complexity. It remains unclear how to establish a universally applicable and effective alignment strategy amidst such diverse ethical and technological contexts. Defining the goals to which AI should align—whether instructions, intentions, preferences, interests, or values—is essential.

  The key issue lies in the concept of alignment. If AI aligns with a single moral theory, this alignment will inevitably conflict with the differing beliefs and values of various cultures and societies. The challenge is not to establish a single moral truth, but to find a framework within which AI systems can be governed without compelling all humans to adopt a specific moral stance. Avoiding the imposition of values is crucial, as powerful technology, if not carefully designed, could exacerbate domination.

  AI alignment with human values is a complex challenge, requiring a balance between epistemic humility and commitment to universal principles. Drawing from Isaiah Berlin’s value pluralism, the paper argues that AI ethics must navigate diverse moral frameworks through dialogue and compromise, avoiding the imposition of a single cultural perspective. John Rawls' overlapping consensus provides a pathway to achieving agreement on shared principles across cultures without requiring adoption of specific theories from any group. Additionally, Charles Taylor’s theory of recognition emphasizes the importance of acknowledging the values of different cultures and groups, advocating for AI systems that respect cultural diversity and avoid suppressing minority values.

  The paper concludes that addressing AI’s ethical risks requires a balance of technological expertise and philosophical inquiry, with a focus on creating an ethical framework that respects global cultural pluralism while ensuring AI systems align with human values in a fair and inclusive manner.

  Keywords:

  AI alignment, ethical risks, value pluralism, cultural diversity, epistemic gaps

AI Governance, Ethics, and Legislation, Revising the UNESCO Recommendation on the Ethics of Artificial Intelligence (2021): AI for Humanity

• Presented research at the 3rd UNESCO Global Forum on the Ethics of AI, advancing a justice-oriented framework for AI governance that rethinks AI governance beyond algorithmic fairness by institutionalizing cultural diversity, democratic justice, and ethical inclusion (SDGs) into global AI policy, legislation, and institutional design. The proposal helps reshape the global landscape of responsible AI governance and supports the continued evolution of UNESCO's AI for Humanity agenda.

• Justice-Oriented Ethical Impact Assessment for AI: Institutionalizing Cultural Diversity in Global AI Governance

  This proposal seeks to institutionalize cultural diversity and difference-sensitive justice into AI ethical governance. It introduces a Difference-Sensitive AI Governance Structure, grounded in Charles Taylor’s theory of the politics of recognition and Iris Marion Young’s justice as difference, which reorients fairness from distributive equality to institutional inclusion, participatory parity, and the dismantling of systemic oppression. Central to this proposal is the integration of the Justice-Oriented Ethical Impact Assessment Toolkit (J-EIA) evaluation matrix into the UNESCO RAM and EIA process and national-level response strategies. This framework promotes the structural embedding of cultural diversity within AI governance across multiple dimensions, including policymaking, institutional design, algorithm development, and ethical evaluation. We aim to move beyond algorithmic inclusion towards structural justice and ethical integrity, systematically embedding cultural difference into the foundations of AI policy, regulation, and design. The overarching objective is to ensure AI value alignment, cultural justice, and the ethical implementation of the UN SDGs through culturally responsive and justice-oriented AI systems.

Multiculturalism, Nationalism, and National Identity(-ies)

Multiculturalism in Canada (The 8th Metropolis Identities conference)

• Unity in Diversity Policies, Practices, and Challenges of Multiculturalism in Canada

  My research is driven by the critical questions: How has Canada’s multiculturalism been made possible? And what are the potential risks and challenges it faces (particularly in relation to nationalism and secularism)? Canada’s multiculturalism presents a unique model of coexistence for different religious, ethnic, and cultural groups. Understanding how it functions can provide insights into managing diversity in other global contexts where conflicts often arise due to differing identity markers, such as religion and culture. Exploring the risks tied to multiculturalism—such as tensions between subgroups and challenges in reconciling divergent values—may reveal the limits of this model and how future threats can be mitigated. Moreover, the relationship between secularism and nationalism in the Canadian context offers a unique perspective on how liberal democracies can maintain harmony among diverse cultural and religious groups.

  Canada’s approach to multiculturalism, often described as a “mosaic” rather than the American “melting pot,” emphasizes the preservation of distinct cultural identities within a unified political framework. Unlike assimilationist policies that require minority groups to conform to the dominant culture, Canadian multiculturalism supports the maintenance of unique collective identities. On the spectrum of nationalism, Canada’s approach to managing relations among ethnic groups stands out as unique. The term “multiculturalism” has Canadian roots. Long before endless academic debates emerged, this -ism term was actually a concept first coined by “a federal bureaucrat … in 1971. Only in Canada” (Adams; The Canadian Encyclopedia). Belonging to the nation in Canada is not determined by shared ancestry, language, culture, or religion. Instead, Canada exemplifies civic nationalism, distinguished by its roots in liberal democratic ideals, and its emphasis on shared civic values, legal equality, and a pluralistic society where cultural diversity is celebrated within a unified political and institutional framework. Multiculturalism policies reject the harsher nation-building model of assimilation and absorption, described by Walker Connor as “majority nation-building through minority nation-destroying”, featured in 19th- and early 20th-century state formation (Murphy 2012).

• Intrinsic or Extrinsic to Canadian Identity? National Cohesion through Identity Boundaries amid Global and U.S. Democratic Backsliding and Deglobalization

  Canada departs from Anthony Smith’s classical models of nationhood by constructing identity through multicultural distinctiveness. In the face of the Trump administration’s new policies and mounting pressures, Canada’s cohesion increasingly depends on conscious divergence—a nationalism rooted in localism, mental independence, and discursive boundary-making that casts anti-immigrant and anti-DEI ideologies as alien to Canadian values. The fear of absorption—of losing distinctiveness—mobilizes narratives of resistance and identity preservation through diversity. Linking institutional resilience to national difference reveals a core strength of Canada’s democratic tradition: its multinational foundation—Indigenous, francophone, anglophone, and immigrant—offers a saving bulwark amid deglobalization.

Democratization and Multi-Ethnic Governance

Global Democratization, Extension of Popular Sovereignty, and National Self-Determination

• Are Democratic Regimes Better at Managing Ethnic Conflict?

  Optimistic view: democracies provide institutional channels (elections, deliberation, representation) that mitigate conflict

  Skeptical view: democratic competition may intensify ethnic mobilization and polarization

  Empirical conclusion: outcomes are conditional on institutional design and historical context

• Modes of Ethnic Governance within Democracies

  Power-sharing arrangements (e.g., consociationalism)

  Minority rights and multicultural policies

  Electoral systems: proportional representation vs. majoritarian systems

  Strategies of institutionalizing vs. de-emphasizing ethnic identities

• Inclusion and Exclusion in Liberal Democracies

  Citizenship, voting rights, and immigration regimes define key boundaries of inclusion

  Formal equality often obscures structural racial and ethnic inequalities

  A central task of democratization is moving from formal inclusion to substantive equality and representation

• Federalism as an Effective Tool?

  Federalism can provide autonomy and recognition for ethnic groups through decentralization. It may reduce center–periphery tensions and accommodate diversity. However, it can also entrench divisions or encourage separatism. Its effectiveness depends on fiscal arrangements, power distribution, and institutional trust.

Ethnicity, Exclusion, and Identity in Europe (Recent Paper)

“The European experience … has long been dominated, … by a racism of the universalist, colonial type.” (Wieviorka, 1994)

• Contemporary Europe is frequently described as having moved “beyond race,” yet persistent exclusion, xenophobia, and hierarchical boundary-making suggest otherwise. European exclusionary discourse shifts from biological racism to what Stolcke terms “cultural fundamentalism” (1995). This paper employs cultural critique and comparative theoretical-interpretive frameworks to conduct a historical and contemporary comparative analysis of the constructed nature of European identity, and discuss a critical distinction between classical racism and contemporary cultural exclusion, highlighting both continuities and conceptual shifts in European xenophobia. This paper asks: How do essentialist logics persist in contemporary European discourses of identity, ethnicity, and national belonging? How have European patterns of exclusion transformed from biological racism to culturalized and differentialist forms of boundary-making? What socio-political and material conditions, as well as intellectual and epistemic traditions, have enabled the persistence of essentialism despite increasing theoretical recognition of hybridity and fluid identity?

  This paper argues that contemporary European exclusion discursive shift from biological racism to what can be termed cultural racism is rooted in both intellectual traditions and political-economic conditions (state transformation, neoliberal restructuring, and postcolonial anxieties). It contends that two dominant logics of racism evident in contemporary Europe—social inegalitarianism and cultural differentialism—represent continuations of colonial ethnic-political discourse and enduring structures of inequality and domination shaped by colonial legacies. Cultural differentialism, in particular, is constructed both as an extension of colonial hierarchical discourse and as a reaction and subtle variant to Enlightenment universalism, operating through more concealed forms of essentialism and primordialism.

Contact

zhm249 [at] g.harvard.edu

ztingacademic [at] gmail.com

Inquire. Investigate. Evolve.

Curiosity Sparks Reality.

Copyright © 2023 Simone Zhenting Mao. All rights reserved.

The troops exulting sat in order round,
And beaming fires illumined all the ground.
As when the moon, refulgent lamp of night,
O’er heaven’s pure azure spreads her sacred light,
When not a breath disturbs the deep serene,
And not a cloud o’ercasts the solemn scene,
Around her throne the vivid planets roll,
And stars unnumber’d gild the glowing pole,
O’er the dark trees a yellower verdure shed,
And tip with silver every mountain’s head:
Then shine the vales, the rocks in prospect rise,
A flood of glory bursts from all the skies:
The conscious swains, rejoicing in the sight,
Eye the blue vault, and bless the useful light.
So many flames before proud Ilion blaze,
And lighten glimmering Xanthus with their rays.
The long reflections of the distant fires
Gleam on the walls, and tremble on the spires.
A thousand piles the dusky horrors gild,
And shoot a shady lustre o’er the field.
Full fifty guards each flaming pile attend,
Whose umber’d arms, by fits, thick flashes send,
Loud neigh the coursers o’er their heaps of corn,
And ardent warriors wait the rising morn.

Iliad, VIII, Translated by Alexander Pope