International Journal of Constitutional Law - recent issues

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

The internationalization of minority rights

Kymlicka, W. — 2008-01-29

Debates concerning integration and accommodation are a familiar feature of the domestic political life of many countries. But these debates increasingly have an international dimension as well. International organizations can strongly influence the way state–minority relations are framed and resolved, endorsing some models of accommodation while discouraging others. This paper attempts to explore which models of state–minority relations and, hence, which types of minority rights, have been endorsed by international organizations, for which types of groups, and in which contexts. These are not simple questions to answer. Many international organizations have struggled with this issue for the past fifteen years without any clear resolution, and their current policies and practices are full of ambiguities and inconsistencies. The goal of this paper is to bring out some of these complexities, focusing particularly on how the rights of indigenous peoples have been elaborated at the United Nations, and the way in which the rights of national minorities have been discussed within European organizations. Very different assumptions and principles underlie the two cases, and each raises its own moral and political dilemmas.

Law as affiliation: "Foreign" law, democratic federalism, and the sovereigntism of the nation-state

Resnik, J. — 2008-01-29

This essay explores the role that law plays in marking the identity of a nation-state and the concerns—which I gather under the term sovereigntism—that animate interest in dictating what position "foreign" law ought to play as a domestic resource in adjudication. In some countries such as the United States, opposition to "foreign" law has a long pedigree, exemplifying an exclusivist form of sovereigntism. In contrast, South Africa's Constitution is also sovereigntist but inclusively so, directing its jurists—as an expression of that nation's identity—to consider international law. After showing why exclusivist sovereigntism cannot succeed as a practice in barring law's migration and how it is wrong as a theory of democracy, I commend engaging in important questions raised by sovereigntism: whether the import and export of law ought to be regulated by national law, what legal actors ought to be active in the trade in law, and how sovereigntism illuminates human aspirations to use law to make distinctive identities for nation-states.

Constitutional patriotism: An introduction

Muller, J.-W., Scheppele, K. L. — 2008-01-29

A general theory of constitutional patriotism

Muller, J.-W. — 2008-01-29

This article offers a theory of constitutional patriotism independent of the controversial social theories of modernization and rationalization with which Jürgen Habermas's version of constitutional patriotism is associated. It argues that the purpose of constitutional patriotism, as a set of beliefs and dispositions, is to enable and uphold a liberal democratic form of rule that free and equal citizens can justify to each other. The object of patriotic attachment is a specific constitutional culture that mediates between the universal and the particular, while the mode of attachment is one of critical judgment. Finally, constitutional patriotism results in a number of policy recommendations that are clearly different from policies that liberal nationalists would advocate.

Constitutional patriotism and militant moderation

Soltan, K. E. — 2008-01-29

Constitutional patriotism is a form of political loyalty combining a commitment to universal principles with a love of a unique object of loyalty, and with a special connection to a constitution. This paper outlines a version of constitutional patriotism with three distinctive characteristics. First, constitutions are not the object of the loyalty, but its most important expression. Second, constitutions are seen as commitments to a certain form of moderate politics. And, finally, constitutional patriotism can be directed toward many different objects of loyalty, but only when it can be simultaneously directed toward a universal civilization. Constitutional patriotism seems to be the best possible form of political loyalty, and hence the form we should adopt. Loyalty is not necessarily always a virtue. But a certain form of loyalty (constitutional patriotism)—to individuals and groups, institutions and causes that deserve loyalty—is a virtue. There are many conceptions of constitutional patriotism; this paper argues in favor of one that expresses a passionate, ambitious, and militant moderation.

Why Europeans will not embrace constitutional patriotism

Kumm, M. — 2008-01-29

Europeans will not become constitutional patriots any time soon. The first part of the article argues that this is not because of anything inherently implausible about the idea, either generally, or when applied to the European Union. But the actual institutional features of European politics make it improbable that Europeans will develop allegiances to the European Union grounded in shared constitutional ideals. Without meaningful electoral politics at the heart of the European political process, the citizenry's attitude toward European institutions will continue to oscillate between disinterest, fickle support, and resentment.

Constitutional patriotism, citizenship, and belonging

Abraham, D. — 2008-01-29

Germany: The European Arrest Warrant case

Nohlen, N. — 2008-01-29

Decision of the German Constitutional Court of July 18, 2005—European Arrest Warrant Act—implementation of EU framework decision—freedom from extradition—guarantee of recourse to a court

Poland: The Constitutional Tribunal on the implementation of the European Arrest Warrant

Nussberger, A. — 2008-01-29

Relationship between EU law and constitutional law—legal nature of EU framework decisions—limitations on pro-European interpretation of constitutional provisions—prohibition of extradition of citizens—delimitation of competences between Constitutional Court and legislature

European Union: The European Arrest Warrant and the quest for constitutional coherence

Sarmiento, D. — 2008-01-29

Israel: Citizenship and immigration law in the vise of security, nationality, and human rights

Barak-Erez, D. — 2008-01-29

Citizenship law—immigration and security—profiling and ethnic discrimination—family reunion—constitutional interpretation—the right to equality—the right to family life

Constitutionalism in divided societies

Choudhry, S. — 2007-10-25

Indonesia's quasi-federalist approach: Accommodation amid strong integrationist tendencies

Bertrand, J. — 2007-10-25

From early independence, the Indonesian state emphasized the building of a strong nation. This republican integrationism worked for the most part; where it did not, as in Aceh and Papua1 provinces, resistance was repressed harshly. Since 1998, however, Indonesia has adopted a more accommodationist strategy in dealing with ethnonationalist groups. Thus, Aceh and Papua each have been the subject of laws that go a long way toward satisfying ethnic demands for accommodation: namely, Law no. 11, 2006 on Acehnese government, which emerged from a peace agreement with the Free Aceh Movement; and a special law regarding Papuan autonomy, in place since January 2002. From a strong unitarist approach, the Indonesian state has moved toward a quasi-federal form, while resisting any tendency toward a pluralist federation. This asymmetrical arrangement is probably the most stabilizing feature of the Indonesian polity, preserving its successful integrationism for most of its territory while introducing accommodation where integration failed. However, there are many factors that mitigate the effectiveness of the special autonomy laws, especially that pertaining to Papua, and it remains uncertain whether and how the Indonesian state can preserve the balance and address remaining sources of contention.

Does the world need more Canada? The politics of the Canadian model in constitutional politics and political theory

Choudhry, S. — 2007-10-25

Political theorists have long considered the question of how constitutional design can respond to the demands of minority nationalism. In this context, Canada has attained considerable prominence as a model, even though the notion of the model came to prominence during the Canadian constitutional crisis of the 1990s, when Quebec nearly seceded. In part, the much-touted Canadian exemplar may be viewed as an intervention by Canadian political theorists in domestic constitutional debates as a way of supporting national unity. However, the Canadian constitutional crisis also points to the limits of a legal approach to the accommodation of minority nationalism. On the one hand, most constitutions contain a process for constitutional amendment, which conceivably might bring about changes sufficient to satisfy the minority nation. On the other, the rules for constitutional amendment may encounter profound difficulties in constituting and regulating moments of constitutive constitutional politics, since it is precisely at those moments that the concept of the political community, which those rules reflect, is placed at issue by the minority nation.

A tale of three constitutions: Ethnicity and politics in Fiji

Ghai, Y., Cottrell, J. — 2007-10-25

There have been sharp divisions of opinion throughout Fiji's modern history between those advocating an integrated, nonracial state, based on individual rights, and those in favor of a political order based on ethnic communities. Integration and consociation, perhaps, are not apt terms to categorize this division, but, certainly, they have some resonance. Many features associated with consociation have been present in the colonial and the postcolonial constitutions, such as separate communal representation, group rights, asymmetrical autonomy, power sharing, separate educational systems, and entrenchment of rights to culture and land. Norms regarding indigenous peoples’ rights have been invoked, as well, adding an extra twist to the integration-consociation polarity. But there have also been strong tendencies toward political integration and broad-based, nonethnic social justice policies. Fiji's experience shows that this polarity has limited intellectual or policy value. Consociation easily and, in Fiji's case, seamlessly slides into hegemony.

Iraq's Constitution of 2005: Liberal consociation as political prescription

McGarry, J., O'Leary, B. — 2007-10-25

Democracies have two basic choices for managing ethnic, national, and religious diversity. They may seek to construct a single all-embracing public identity through "integration" or try to accommodate dual or multiple public identities through "consociation." These are the two dominant, broad-based prescriptions that are offered for addressing the conflict in Iraq. In this article, we argue that Iraq's new Constitution, ratified in 2005, reflects a "liberal" form of consociation that accommodates Iraq's democratically mobilized communities. We examine in detail the Constitution's provisions for both self-government and for shared government, and argue that these provisions represent a reasonable way forward for all of Iraq's citizens and peoples. The Constitution is defended against integrationist criticisms.

Recognition without empowerment: Minorities in a democratic South Africa

Murray, C., Simeon, R. — 2007-10-25

Many commentators, both inside and outside South Africa, predicted that, once the heavy hand of white minority rule was lifted, ethnic and linguistic divisions within the African majority would gain new salience, resulting in widespread conflict in a divided South Africa. These predictions have not been borne out. South Africa remains a highly diverse, and highly unequal, society. But a political accommodation across the broad racial divide has been reached; and divisions within the African community, while still present, have decreased, rather than increased. Why? We consider a number of explanations, but focus our attention on the South African constitutional design, which gives strong recognition to diversity and difference in private life, while seeking to the greatest extent possible to prevent ethnocultural differences entering the public sphere. We trace this through the fundamental principles set out in the Constitution, the Bill of Rights, the designation of a multisphere government, and other provisions. As the significance of ethnocultural difference has declined, South African politics has become increasingly focused on economic differences.

Giving with one hand: Scottish devolution within a unitary state

Tierney, S. — 2007-10-25

This essay employs Scottish devolution as a prism through which to examine two public policies used to manage national diversity: "accommodation" and "integration." While an accommodationist discourse can certainly capture many of the substantive constitutional outcomes sought by substate national societies, it may not provide the symbolic recognition that will articulate fully a "plurinational" concept of the state. Following from this, the essay focuses on the tension at the heart of the Scotland Act 1998. In terms of its autonomy provisions and the recognition these imply, the act may be seen as a genuine attempt to redefine the United Kingdom's constitution in a plurinational direction. However, in other ways, the structure of the settlement embodies strong integrative tendencies that sustain the categorical distinction between host state national society, on the one hand, and substate national societies, on the other. Finally, it is observed that the expanding powers of the European Union may restrict efforts to reorient the state in a plurinational direction, since many devolved powers of substate nations and regions are subject to the normative supremacy of parallel levels of EU competence.

Balancing and the structure of constitutional rights

Moller, K. — 2007-10-25