Migration as a Constitutional Crisis for the European Union

Constitutional crises are typically considered as among the most profound crisis type, shaking political regime foundations and posing a challenge for democratic futures. This article critically engages with the concept of ‘constitutional crises’, highlighting how the difficulties with determining clear criteria for their occurrence may undermine democracy by non-democratic partisan elites creating a sense of existential threat that necessitates the transfer of more state power to them. Recognizing this ambiguity of ‘constitutional crises’, the article studies how constitutional courts (including supreme courts in non-centralized judicial review systems) responsible for ‘guarding constitutions’ possess constitutional crisis-mitigating potential and thereby may contribute to democratic governance. Via identification of gaps in existing scholarship, the factors affecting constitutional court performance in crisis mitigation—formal powers, independence, empirical legitimacy and role orientation—are identified, with constitutional court agency shaping the institution’s choices trumping potential constraints stemming from competence restrictions. Constitutional courts can signal when the vague concept of ‘constitutional crisis’ is invoked merely as a pretext for power concentration and when constitutional crisis discourse does not justify departing from democratic procedures, thus helping depolarization and encouraging deliberation over political decisions. The potential and limits of constitutional courts as constitutional crises-mitigators is illustrated via examples from the Visegrad region where post-2010 de-democratization has been rampant and accelerated by the COVID-19 pandemic.

Revolutionary actions and constitutional crises are closely linked. However, research mainly looks at the two phenomena as distinct from each other. While studies on revolutionary actions are interested in the agency and the impact of the actions on the country’s institutions, legal research focuses on the constitution itself. The separation of the two strands leads to a limited understanding of their dynamics and complexity. What do we know about the relationship between revolutionary actions and constitutional crisis, and vice versa? The first question is how revolutionary actions trigger constitutional crisis, defined as a moment in which decision makers are unwilling or unable to manage the societal conflicts within the confinement of the constitutionally provided boundaries. Different types of revolutionary behavior—such as elite-led military coups, civil wars, and nonviolent resistance movements—trigger constitutional crises in many cases. They can lead to a new constitution with diverse implications for the political system. Whether the opposition or the old regime prevails in the constitutional crisis is a question of the power resources of both parties to the conflict. In some cases, the opposition movements succeed in making the political system more democratic. However, there are also cases where the constitutional crisis ultimately leads to more power for the ruling class. The relationship also works vice versa: a constitutional crisis can trigger revolutionary actions. Constitutional coups, and processes of democratic backsliding and constitutional rot, can trigger violent and nonviolent revolutionary actions. Political elites can try to change constitutional norms for their own benefit, such as extending the presidential term of office. This often leads to a storm of public protest and can become a real threat to the regime’s survival. A constitution can enter a crisis phase for a long time if it no longer serves the needs of parts of society. The injustices that thus arise within society can be a strong motive for revolutions. The combination of agency and constitutional processes is a promising avenue for future research that could help analyze the complex relationship between constitutional crises and revolutionary actions. In addition to innovative theoretical approaches, new empirical data is needed to examine the process of constitutional negotiation in more detail.

Dysfunctional politics in the United States and Donald Trump’s presidency have caused many people to worry that the country is in the middle of a constitutional crisis. That is not the case. A constitutional crisis occurs when a constitution is about to fail at its central purpose—to keep struggles for power within the boundaries of law and the Constitution. Constitutional crises are rare in American history, and the United States is not currently in a constitutional crisis, although it is facing a series of worrisome political crises. When Americans talk about constitutional crisis they are really describing constitutional rot, which is discussed in the next chapter.

In the autumn of 1991 there was an overt ‘constitutional crisis’ in Hungary concerning the role of the president of the republic, a crisis which was subsequently more or less settled. In fact, the whole history of the democratic transition has been a permanent constitutional crisis. The constitution-making process as a method of establishing the fundamental rules of the game in politics and as a constant redefinition of the concept of the state has always been central in the transition. Consequently, the major political disputes have centred on the issue of constitution-making.


 
 A constitutional crisis is a scenario in which the norms stated in the constitu-tion are present in the text but absent in context (constitution with semantic value), indica-ting an amputation of the impartiality of the Constitutional Court and disobedience to itsdecisions. Functionally, the Constitutional Court has the highest authority in maintainingthe dignity of the constitution and guarding its values, to which all elements of the nationare accountable. In Indonesia, the constitutional crisis can be understood from three impor-tant events. First, the House of Representatives signed a waiver for Article 22 of the 1945Constitution, approving a Government Regulation in Lieu of the Job Creation Law stipu-lated by the President. Second, the Court’s impartiality principle was violated via dismissalof the Constitutional Judge, Aswanto. Third, the legislative and executive as well as the judi-ciary, in this case, the Supreme Court, disobeyed the Constitutional Court’s decisions. Thesethree events intensify the constitutional crisis.
 
 
 
 
 
 
 
 
 
 
 
 

The African Union (AU), which succeeded the Organisation of African Unity (OAU) in 2002, is based on a strong legal and institutional framework that reinforces constitutionalism at national, regional and continental levels. This framework is a response to the failure of the OAU to tame autocratic tendencies within its member states. It cements the organisation’s commitment to infuse the ideals, values and norms of constitutionalism into the conduct of domestic affairs and politics. The relevance of the framework stems from its ability, when adhered to by all member states, to prevent constitutional crises, many of which have a negative impact on national, regional and continental peace and security and often hinder the prospect of constitutional democracy. Using examples of AU interventions to stymie constitutional crises in the form of unconstitutional changes of government in the Central African Republic, Burundi and Southern Sudan, this paper highlights the dialectical relationship between constitutionalism, peace and security, which can ensure that AU interventions reinforce, rather than undermine, constitutional ideals. While noting the AU’s inability or unwillingness to apply this framework in all the constitutional crises it has been called upon to address, the article concludes that member states and the AU itself need to commit to the ideals of constitutionalism, otherwise the transformative constitutional framework will remain a mere paper tiger.

In the months that preceded President Clinton's impeachment trial, observers in the media breathlessly reported the so-called death struggle between the President and Kenneth Starr. Distinguished academic commentators, such as Ronald Dworkin and Arthur Schlesinger, Jr., were equally overheated in their rhetoric, predicting that the President's impeachment would shred the American constitutional fabric. Of course, Clinton was impeached, with no discernible unraveling of the regime. The immediate political stakes were high, to be sure, and both sides fought with energy - as a minor participant in the struggle, I can attest to that. But no lives, and very few persons' liberty, were ever in jeopardy and, contra Dworkin and Schlesinger, the U.S. Constitution was safe throughout the ordeal. The impeachment trial of a sitting president is always a crisis, at least in the sense that it may herald a transfer of power. But in that sense every presidential election could equally be called a crisis. There are crises, and then there are constitutional crises. For an illustration of the latter, let us retreat to the 1641 impeachment trial of King Charles I's principal advisor, Thomas Wentworth, the Earl of Strafford. At stake in Strafford's trial was nothing less than the future of English constitutionalism and limited monarchy: Would the Stuart kings enlarge the powers of the monarchy along French lines or would Parliament preserve, and even expand, its own powers and privileges? And, on a more personal level, whose head would fall - Strafford's or that of his principal antagonist in the House of Commons, John Pym? It was the stuff of riveting drama: The King attended every day of the month-long trial, crowds gathered each day to witness Strafford's arrival in Westminster, and the city erupted in violence. Contrast this with the waning interest in the Lewinsky affair by the time of the Clinton impeachment trial in the United States Senate. One of the first lessons from history is that not every political crisis raises fundamental issues. I think it fair to conclude or simply posit that a constitutional crisis may be expected to excite widespread interest outside the academy. If this is accurate, an impeachment trial that sets off an avalanche of law review articles, but garners fewer than ten million television viewers, is not a constitutional crisis.

Constitutional scholars have long observed that the term “constitutional crisis” is overused. Pundits and scholars routinely use it to describe constitutional developments that they view as normatively undesirable. But doing so may hurt our ability to recognize them. We use a comparative and historical perspective to call attention to the worst-case scenario of constitutional breakdown. This scenario, which we will refer to as a “constitutional crisis of authority,” is defined by the presence of competing claims to legitimate political or legal authority in a single office—such as the existence of two presidents or two apex courts. Despite their gravity, such episodes of competing authority are not generally the focus of the U.S. literature on constitutional crises, presumably because the federal constitutional system has rarely experienced them. In addition, many of the scenarios that US scholars do describe as crises turn out, upon comparative and/or historical analysis, to be relatively common, both abroad and within the United States. These so-called “constitutional crises” include violations of constitutional rules and norms, the failure of poorly designed provisions to settle legal disputes, and even the failure of constitutional systems to address large problems. All of these are, we argue, less threatening to the survival of a constitutional system than crises of authority.

The present crisis in the euro area is both an economic and a constitutional crisis. In turn, the constitutional implications are not only confined to the economic dimension but reach out to the political and social constitutions as well. The relational concept of a constitution has important consequences for an examination of the Eurozone crisis. The Eurozone crisis exemplifies the particular process-nature of the European constitution: the EU constitutional legislator or constitutional court has played but a peripheral role in the constitutional mutation the crisis has occasioned. This chapter explains the implications that developments in the field of the economic constitution have had for the political dimension. The European process of constitutionalisation does include such manifest, high-profile constitutional speech acts as the Founding Treaties and their amendments. The constitutional crisis is not manifest only in, say, debatable readings of single Treaty provisions but also the teetering of the central Maastricht principles of the macroeconomic constitution.

This paper makes an assessment of how far the African Union (AU) has gone in exercising the mandate of use of force as one of tools for upholding democracy and constitutionalism within the continent. The key intention of this assessment is to scrutinize the suitability of the use of force in the AU’s framework as one of the channels for safeguarding democracy and constitutionalism. The work has employed qualitative research methods, relying on both primary and secondary data. Parallel to that, four case studies from selected AU missions in Africa have been relied upon (Burundi twice, Comoros, Mali and the Gambia). Findings reveal that generally the AU has made significant strides in utilizing its mandate in the use of force in upholding democracy and constitutionalism in Africa by restoring peace, rule of law, stability, human security and in safeguarding people’s will. The AU has also proved to be a reliable first responder in African constitutional crises given the fact that intervention by the UN system takes too long to be engaged and that the UN does not deploy peacekeeping forces where there is no comprehensive peace agreement. Despite that encouraging development, critical challenges still exist. The AU has not succeeded in addressing one notorious vice in Africa which largely contributes to recurrent constitutional crises, namely bad governance. Bad governance exists in various forms such as disrespect of presidential term limits, nepotism and willful disregard of the will of the people in general elections. Other challenges include financial constraints to adequately fund large scale operations, excessive reliance of donors for its peace operations, lack of political will from some African states, and difficulties in harmonizing interests of all parties to conflicts. In order to address these challenges, the AU should achieve its financial autonomy. It should explore further on the lead nation approach and put in place a more formal system on terms and conditions of participation of those nations and anchoring peace support operations. The UA should also make more efforts to instill upon African leaders the culture of good governance because it will greatly reduce constitutional crises which necessitate the use of force in addressing them. Lastly, the AU should discourage procuring of peace deals without the free consent of all the key actors in constitutional crises. Free consent is crucial in ensuring that the peace deals will be adequately respected. The overall outcome of this assessment therefore serves as an encouragement of the AU to continue working tirelessly in improving the mechanism of use of force because it has proved to be a potential tool for upholding democracy and constitutionalism in appropriate circumstances.

Reviewed by: Remaking North American Sovereignty: State Transformation in the 1860s ed. by Jewel L. Spangler and Frank Towers Alice L. Baumgartner (bio) Remaking North American Sovereignty: State Transformation in the 1860s. Edited by Jewel L. Spangler and Frank Towers. (New York: Fordham University Press, 2020. Pp. 288. Cloth, $125.00; paper, $35.00.) The 1860s was a decade of constitutional crisis in North America. In 1861, eleven southern states seceded from the Union in defense of slavery. [End Page 429] As Union and Confederate soldiers fought the opening battles of the war, the French army invaded Mexico and installed an Austrian archduke as its emperor. In 1867, the same year that republican forces in Mexico executed the French-imposed emperor, Canadian provinces and territories entered into confederation, resulting in greater independence from Britain. By examining these constitutional crises in relation to one another, Remaking North American Sovereignty not only deepens our understanding of sovereignty and state formation in the 1860s, but also models several different methodological approaches to researching and writing transnational history. Remaking North American Sovereignty is divided into three parts. Part 1, “Making Nations,” examines how sovereignty was reshaped and redefined in the 1860s. Steven Hahn looks at the familiar history of the Civil War from the “inside out” and “the southside north” in order to interrogate our assumptions about the development of capitalism, the abolition of slavery, and the geography of the sectional crisis. Andrew Smith points out the hemispheric factors that helped to convince most Canadians to remain part of the British Empire: British military might promised to guard against threatened invasions from the United States at the same time that the U.S. Civil War and political instability in Latin America demonstrated the dangers of republicanism. Pablo Mijango y González takes up the question of why Mexico and the United States each experienced a “constitutional revolution,” while Canada underwent a more peaceful process of “constitutional gradualism.” Robert Bonner explores the visual vocabulary of sovereignty across North America in order to show how sovereignty was not only conceived but visualized in new ways in the 1860s. Part 2, “Indigenous Polities,” assesses how Native peoples shaped and responded to the constitutional crises in North America. Jane Dinwoodie asks how Native groups who had resisted removal responded to the Civil War, showing that some tribes, such as the Eastern Cherokee, fought for the Confederacy in order to secure their claim to their lands, while others, such as the Bayou Lacombe Choctaws, tried to protect their communities by retreating to remote, inaccessible terrain. Ryan Hall analyzes Blackfoot treaty-making to show both similarities and connections between state expansion in the United States and Canada. Marcela Terrazas y Basante studies how Indian raids shaped the construction of sovereignty at the national, state, and local levels in Mexico. Part 3, “The Complications of the Market,” looks at conceptions of sovereignty at a more granular level. Christopher Clark shows how the [End Page 430] expansion of freeholding, promoted by the distribution of homesteads and the allotment of tribal lands, extended and transformed national power in the United States. Benjamin H. Johnson compares Louis Riel and Juan Cortina to reexamine the consequences of greater national power in Mexico, Canada, and the United States. Mary P. Ryan takes up debates over landownership in the San Francisco Bay area to understand how different scales of authority—municipal, state, and federal—contest and, in the process, construct conceptions of sovereignty. These essays speak to one another in ways that enrich our understanding of state formation and transformation in the 1860s. One of the greatest ironies of Greater Reconstruction was, as Frank Towers writes in the introduction, “the simultaneous drive by President Abraham Lincoln to free slaves in the South and conquer indigenous states in the West” (8). The issue of sovereignty helps to resolve the apparent contradiction. As Steven Hahn explains, the constitutional crises of the nineteenth-century United States revolved around “the various challenges and obstacles to a national sovereignty, about competing sovereignties and their eventual defeats, whether they were slaveholding, Native American, Mormon, or some other” (25). Lincoln issued the Emancipation Proclamation in order to defeat the Confederate States of America. After...

ABSTRACTThe Dagbon succession conflict has been intermittent since the colonial era. What appears to be the most trumpeted thesis in the scholarly works that the conflict has attracted is the over-politicization of the conflict. While the over-politicization of the conflict is indisputable, this study uncovers the constitutional crisis, which is beneath and motivates the over-politicization of the conflict. Through a critical content analysis of archival and historical documents (commission reports, letters, petitions, minutes, and court rulings, among others), and through secondary data from books, journal articles, and newspapers (both print and electronic), the paper identifies and explores three principal sources of the constitutional crisis, namely, the inadequacy of the 1930 Dagomba Succession Constitution, the lack of legitimacy for the 1948 Amended Dagomba Succession Constitution, and the state's interventions that have deepened the constitutional crisis. Having explained how legal centralism and legal pluralism have been implicated in the conflict, the paper concludes with a dispassionate call for a transformation of the conflict that will acknowledge the constitutional character of the conflict and the need to convene a constitutional conference in which the two royal gates would harmonize their emic perspectives on their succession customs and rules.

Constitutionalism is in crisis. And the crisis unfolds not only on a national or a regional level. It is a global phenomenon: Democracy is no longer on the rise, the rule of law appears weakened, political cohesion seems to erode. The protection of human rights is being questioned, international criminal law is not broadly recognised, international trade may have lost some of its appeal. Institutional actors find their authority questioned, established political parties are threatened by ever-changing popular movements. But to where does the charted road lead? How will the ‘Crisis of Constitutionalism’ unfold in the years to come? Nobody knows, of course. But at the same time, nobody is too keen to make an educated guess either. This volume remedies that. By giving nine scholars in law and political science the opportunity to make their predictions as to where the constitutionalist project will stand ten years from now, it

WITHIN the span of a single generation-during the thirty-odd years that began with the annexation of Texas in I845 and ended with the withdrawal of the last Union troops from the South in x877-the United States underwent a succession of constitutional crises more severe and menacing than any before or since. From I845 on, for some fifteen years, a constitutional dispute over the expansion of slavery into the western territories grew increasingly tense until a paralysis of normal constitutional functioning set in. Abruptly, in i86o-x86i, this particular constitutional cr'isis was transformed into another: namely, that of secession. Though the new crisis was intimately linked with the old, its constitutional character was fundamentally different. The question of how the Constitution ought -to operate as a piece of working machinery was superseded by the question of whether it might and should be dismantled. A showdown had come, and the fouryear convulsion of Civil War ensued. Then, when hostilities ended in i865, there came not the hoped for dawn of peace, but instead a third great constitutional struggle over Reconstruction, which lasted a dozen years and proved as harsh and divisive as any cold war im history. When the nation finally emerged from three decades of corrosive strife, no observer could miss the profound alterations that its institutions had undergone. Into the prodigious vortex of crisis and war every current of American life had ultimately been drawn. So all-devouring was the conflict and so momentous its effects that to characterize it (as I have done) as a series of constitutional crises will seem to many readers an almost irresponsible use of language, a grotesque belittling of the issues. Powerful economic forces, it will be pointed out, were pitted against one another in the struggle. Profound moral perplexities were generated by the existence of slavery, and the attacks upon it had social and psychologcal repercussions of incredible complexity. hevarious questions

The Liberal government’s attempt to find a solution to the problem of poverty through fiscal reform brought to a head a long-maturing conflict between the Liberal party and the House of Lords. When the Lords rejected Lloyd George’s ‘People’s Budget’ in November 1909, they ushered in a period of fierce political controversy which included two hard-fought general elections in 1910 and culminated in the struggle over the terms of the Parliament Act of 1911. In the course of this controversy, the futures of the government, the House of Lords, and even of the monarchy, were all, at various times, placed in jeopardy. Even the resolution of the crisis by the passage of the Parliament Act did not end altogether the political and constitutional turmoil, which continued to influence public affairs until the outbreak of war in 1914. This chapter will examine the origins of the constitutional crisis, describe the course which it took and discuss its outcome. In assessing its significance, an attempt will be made to decide whether, as Dangerfield believed, the crisis was symptomatic of growing extremism and loss of control in public life, or whether, for all its undoubted ferocity, it represented an ultimate victory for the parliamentary system of government and the values of democratic debate.