International Journal of Constitutional Law - current issue

Ackerman's higher lawmaking in comparative constitutional perspective: Constitutional moments as constitutional failures?

Choudhry, S. — 2008-04-04

Bruce Ackerman speaks with two voices. While he is one of the most prominent students of comparative constitutionalism in the U.S. legal academy, Ackerman is better known for his imaginative theory of American constitutional development. In the latter voice, Ackerman observes that, notwithstanding a remarkable continuity of governance, U.S. constitutional history falls into three distinct regimes. He argues that the transitions between these different constitutional regimes, inasmuch as they have failed to comply with the Constitution's written rules for its own amendment, have taken place through a process of "higher lawmaking." There is an underlying tension between this voice of Ackerman's and the other one, which expounds on the relevance of comparative analysis for constitutional scholarship. While Ackerman the comparativist lambastes U.S. constitutional scholars for their parochialism, in We the People he calls on American constitutional scholars to ground theories of the Constitution in indigenous political practice. This paper attempts to reconcile the two strands of Ackerman's work, focusing on the "constitutional moment"—Ackerman's central contribution to the study of American constitutional change—and applying it to other countries, specifically, Canada. The comparative constitutional research questions are whether other systems experience constitutional moments, and what we can learn about these moments by studying them inside and outside the United States.

Democracy and collective decision making

Issacharoff, S. — 2008-04-04

Around the world, traditional barriers to judicial engagement with the structure of democratic politics have fallen remarkably as courts increasingly entertain first-order questions about the structures of governance. This article explores judicial responses to a particularly vexing problem: who should be the polity that decides first-order political issues?

The most famous such judicial encounter is that of the Canadian Supreme Court in a case involving whether Quebec had a right to secede based on a referendum of its own population. The discussion places the Canadian Court's resolution of that issue in the context of how numerous courts around the world, including the United States Supreme Court, have addressed similar questions, though generally in cases not so freighted as the potential dissolution of the national federation.

Concluding from a review of such cases that courts forced (or willing) to engage such issues are likely to find little mooring for their resolution in either legal doctrine or political theory, the article warns that courts should be wary of following their impulses to treat such first-order conflicts about the structure of political systems as familiar claims of individual rights, even if that is the posture in which the issues are litigated.

The role of dignity in equality law: Lessons from Canada and South Africa

O'Connell, R. — 2008-04-04

This paper examines the link made on occasion between the concept of dignity and substantive equality; it is further noted that dignity can have very different meanings in different contexts. While the notion of dignity does not often play a substantive role in the resolution of decisions, sometimes the underlying understanding of dignity does matter. However, in all cases, judges should avoid the temptation to rely on unarticulated value judgments or subjective notions of dignity. When judges make reference to dignity, they should articulate the values underpinning their conception of it.

The gender of representation: On democracy, equality, and parity

Ruiz, B. R., Rubio-Marin, R. — 2008-04-04

The debate regarding the statutory introduction of gender parity in electoral lists has been led, on the one hand, by those who envisage parity as a way to attain substantive equality between the genders. The opposition has been led by those who, on the other hand, reject it as going against the very principle of equality in its formal dimension, as well as against the autonomy of political parties. Based on the experience of France and Italy on this matter, this article discusses both sets of arguments and applies them to the Spanish context. It further defends the need to bypass the theoretical parameters of equality and affirmative action in order to place the defense of electoral parity within the theoretical parameters of the postliberal democratic state. It aims, therefore, at articulating electoral parity as a conceptual requisite of the democratic state.

European Court of Human Rights: Consent to IVF treatment

Thornton, R. — 2008-04-04

Consent to IVF treatment—Human Fertilisation and Embryology Act 1990—male gamete donor withdrawing consent to storage or use of embryos—European Convention on Human Rights—right to respect for privacy

Germany: Shooting down aircraft and analyzing computer data

Youngs, R. — 2008-04-04

Right to life—right to control information about oneself—control of terrorism—shooting down hijacked aircraft—computerized data analysis to identify "sleeper" terrorists—articles 1(1) and 2(1) and (2) of German Basic Law—comparison of constitutional law in Germany and United Kingdom

Interpreting Constitutions: A Comparative Study

Mendes, C. H. — 2008-04-04

The Paradox of Constitutionalism: Constituent Power and Constitutional Form

Oklopcic, Z. — 2008-04-04