Treaty Termination and Constitutional Change

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

Throughout the eighteenth and nineteenth centuries a large number of historical records were published in a wide variety of forms, most of which can be described as being part of wider historical and antiquarian practices. Taking the publishing of record editions as itself a historical practice, this article surveys the varying people, practices, and purposes involved before discussing a number of continuities and changes in the practice across two centuries. It will show how records publications were not only access driven but also concerned with the preservation of records, and that they influenced archival practices, changing the way that archival collections were ordered and arranged. The article will also argue that the place of record publications in wider historical practice changed from being one among a wide variety of practices used to engage with the past to a much more restricted role as an auxiliary practice making sources available to narrative historians.

Treaties — In General — International Validity of Treaties and their Operation in Municipal Law.Treaties — Operation and Enforcement of — Transformation into Municipal Law — International and Municipal Validity of Treaties — Right of Courts to Pronounce on Termination of Treaties or their Suspension on Account of Retorsion.Treaties — Termination of — The Clausula rebus sic stantibus.323Treaties — Termination of — On Account of Non-Performance by the Other Party — Whether Determined by Courts — Termination on Account of Change in Constitution — Municipal Operation and Enforcement of Treaties — Organs Competent to Terminate a Treaty — International and Municipal Effect of Treaties.

Written constitutions are susceptible to informal changes that do not manifest themselves in alterations to the text, for instance as a result of judicial interpretation, legislative enactment or executive action. This phenomenon is well developed in the scholarly literature on constitutional change and informal constitutional amendment. But what remains understudied and undertheorized in Canada and the United States is how written constitutions change informally as a result of the development of an unwritten constitutional norm, otherwise known as a constitutional convention. In this Article, I hypothesize with reference to the Canadian and United States Constitutions that there exist two major categories of informal constitutional change by constitutional convention: incorporation and repudiation. I suggest also that incorporation and repudiation may each occur in two ways: incorporation may occur by filling an existing void in the constitutional text or by refining one of its existing provisions, and repudiation may result from creating a void in the constitutional text or from substituting one of its existing provisions. I then evaluate whether these four forms informal constitutional change by constitutional convention entail costs to the rule of law where constitutional meaning is rooted in the present public meaning of the constitutional text. My larger purpose in this Article is to invite a dialogue with comparative public law scholars on how unwritten constitutional norms change written constitutions so that we may ultimately better understand the forms and implications of unwritten constitutional change.

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

The theory of the political safeguards of federalism has made a recent comeback, appearing in Supreme Court dissents by Justices Breyer and Souter and in prominent articles by Professor Larry Kramer and Professor Brad Clark. We argue that the idea that the political process can wholly replace judicial review in policing the boundaries between federal and state power is inconsistent with the text, structure, and original understanding of the Constitution. None of these sources allows the federal courts to exercise judicial review while simultaneously excluding entire subject matters from its protections - especially one as central to the constitutional structure as federalism. The political-safeguards theory treats judicial review as purely functional and almost discretionary, while we believe that the constitutional text, structure, and history impose judicial review as a mandatory duty on the courts. We show that political safeguards theory creates severe distortions in the constitutional structure, as does Kramer's provocative theory that the extra-constitutional role of the national political parties can serve as a complete substitute for judicial review of federalism questions. Finally, we show that the original understanding of the Constitution cannot support any theory that insists that the national political process's presence as a possible safeguard permits the exclusion of judicial review over federalism questions.


 Constitutional changes are part of the political and legal dynamics of a country. Changes to the constitution aim to meet the legal demands and needs of the community so that they are clearly and firmly regulated in the constitution. This paper is oriented towards the idea of a formal review of constitutional changes in Indonesia. This research is a normative legal research. The approach used in this research is a conceptual approach, a comparative approach, and a statutory approach. The primary legal materials in this study include the text of the 1945 Constitution of the Republic of Indonesia, constitutional texts in various countries and the Constitutional Court Decision No. 91/PUU-XVIII/2020. Secondary legal materials include: books, journal articles, and websites related to the constitution and constitutional law. Non-legal materials include legal dictionaries. The results of the study indicate that a formal review of constitutional changes is needed as an effort to maintain the supremacy of the constitution, including also placing the court's function as guardians of the law and the constitution in dealing with the determination of non-legal aspects in constitutional changes

This article introduces a special issue on the topic of museum documentation and knowledge production. The articles in this issue address the history of museum catalogues and position the documentation of material culture as a historical epistemological practice. Each article examines how cataloguing practices have evolved over time and how the categorization or classification of ethnographic material culture often depends on specific individuals or preexisting scientific standards. This issue engages critically with emergent discussions concerning the formalization of knowledge about ethnographic material culture as it emerged in the nineteenth century. These articles also contribute to theoretical discussions that consider the material practices of knowledge production and the affective relations that shape this information. As a whole, this issue gives unique insights into how museums have documented material culture through time and provides a way of thinking about how we might engage with such historical practices that still impact much of our present work.

Lost and Now Found: The Search for the Hidden and Forgotten

This is a debate between Lorenzo Zucca and Alon Harel on the nature of constitutionalism. Traditionally constitutions and judicial review are considered to be instruments to protect rights or justice. In his book Why Law matters Harel develops a non-instrumentalist account of legal institutions and procedures. It argues that various legal and political institutions that are often perceived as contingent means to the realization of valuable ends are necessary components of a just society, namely that they matter as such. Part III of Why Law Matters defends a non-instrumentalist defense of constitutionalism (robust constitutionalism). More particularly it defends two aspects of constitutionalism: binding constitutional directives and judicial review.Zucca rejects this view and defends robust instrumentalism; he argues that constitutions and judicial review are means to bring about social coordination. Zucca raises several objections against binding constitutionalism. He argues that: Harel’s understanding of constitutional entrenchment is flawed; Harel’s argument suffers from infinite regress and Harel’s reliance on republicanism exposes his argument to forceful objections. He further argues that Harel’s theory of judicial review is ultimately an instrumentalist one and that Harel’s understanding of the role of judges is too limited. The debate touches upon fundamental questions of constitutional theory: is the constitution a means to protect rights or democracy or is it a component of justice? Should the desirability of judicial review hinge only on the instrumental contribution of judges in protecting rights or does judicial review rest also on the very opportunity that individuals have to challenge the state?

I. Introduction Observers of the global judicialization of politics have noted the spread of constitutional courts around the world, which made their appearance in early twentieth-century Europe1 and became seemingly required practice thereafter in Asia, Africa, and Latin America.2 The paradigmatic power of these courts is constitutional review, in which a court evaluates legislation, administrative action, or an international treaty for compatibility with the written constitution. It is natural that writers on the new constitutional courts have concentrated attention on judicial review, for it is here that the courts' lawmaking power is at its apex. Relatively free of the threat of correction from other political actors, courts exercising judicial review are rather obviously policy-making bodies. But in their understandable eagerness to assess new systems of review, scholars have paid little attention to the other functions of constitutional courts - functions that potentially alter the status and effectiveness of the bodies. This Article is concerned with what we call the ancillary powers of constitutional courts - those powers that fall outside the prototypical constitutional-review function described above. Perhaps because of the prominence of constitutional courts and their function of reviewing legislation and government action, constitution drafters have given new courts a wide range of other tasks ranging from impeachment to certifying states of emergency. Just as Martin Shapiro has argued that scholars of American law and courts have paid too much attention to judicial review,3 scholars of the new constitutional courts also risk an incomplete understanding of courts as political institutions if they ignore these other powers of constitutional courts, which often place the courts in the midst of politically charged controversies. This Article is a first attempt to call attention to these powers as a set. It describes the powers, documents trends over time, and speculates as to the political consequences of assigning courts tasks beyond judicial review. We do not mean anything pejorative by labeling these powers ancillary. As a historical matter, the earliest constitutional power of courts was that of judicial review.4 The powers considered here arise later as a historical matter, and hence can be labeled ancillary in this sense. Furthermore, none of the powers considered here is seen as essential to the definition of a court as a constitutional adjudicator. The defining function of a constitutional court is constitutional review, and other powers may be bundled with that function, but need not be. As we will see, the ancillary powers vary in the extent to which they require the court to refer to a constitutional text, and some of them do not involve the constitution even nominally. But paradoxically, the involvement of courts in ancillary tasks has the potential to undermine their ability to conduct effective constitutional review, precisely because it pulls them into political conflicts. The Article is organized as follows: We begin with a review of the recent literature on constitutional review and judicial lawmaking. We then describe the evolution of some of the ancillary powers of constitutional courts around the world, both as provided by constitutional texts and as exercised in practice. We conclude by speculating on the tension that emerges between lawmaking and dispute resolution in the exercise of these ancillary powers. II. Constitutional Review and Judicial Lawmaking A. The Spread of Constitutional Review Constitutional interpretation is arguably an essential function of written constitutions, but for much of the history of written constitutions the task was primarily assigned (if at all) to the legislature in accordance with the doctrine of parliamentary sovereignty.5 The American experience with Marbury v. Madison6 was, however, emulated in several Latin American constitutions in the nineteenth century7 and in other countries, such as Norway, where courts announced the power to review legislation for constitutionality. …

Can anything be constitutional that violates clear and concrete commands contained in the Constitution? Most constitutional theorists say “No.” As much as they disagree on how to interpret the Constitution’s vague clauses, they agree that nothing can justify a departure from the Constitution’s many rule-like directives. As Randy Barnett has recently quipped: “To remain faithful to the Constitution . . . we must never forget it is a text we are expounding.” Nevertheless, constitutional practice gives a different answer. On the one hand, there are “constitutional workarounds,” which Mark Tushnet describes as instances where “[f]inding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts—and do so without (obviously) distorting the tools we use.” On the other hand, there the writings of other scholars who, in the course of investigating particular constitutional clauses and controversies, discuss constitutional doctrines or governmental practices that they say violate clear and concrete constitutional text without a workaround to provide cover. This Article explores and supplements these many scholarly claims. It contends that our constitutional tradition contains an array of doctrines and practices that depart from clear and specific constitutional rules. Constitutional praxis evidently has different norms, and teaches different lessons, from constitutional theory. This Article supports its contention in two ways. First, it discusses a variety of constitutional doctrines and governmental practices that other commentators have already noted as conflicting with clear constitutional text. Second, it provides a thorough study of a well-known and important constitutional doctrine that is not generally recognized as a departure from the Constitution’s clear requirements. The example is the petty crime exception to the right to jury trial. The Constitution enshrines the right to jury trial in Article III, § 2, which peremptorily commands that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” However, according to the petty crime exception, defendants facing no more than six months in jail, or a fine of no more than $500, have no right to a jury trial. The petty crime exception, at least at first blush, appears to depart from the Constitution’s literal requirement of jury trial for “all Crimes.” The full argument is more complex, but it reaches the same conclusion. In addition, in its initial analysis of Article III’s jury provision, this Article employs the interpretive approach of modern textualism. Only after a textualist analysis is complete are the alternative interpretive norms of originalism and living constitutionalism brought into the discussion. Because of the varying results produced by these three interpretive modes, this Article, in the process of establishing that the petty crime exception is a departure from a clear and concrete constitutional command, provides a telling example of the extent to which the varying interpretive norms of textualism, originalism, and living constitutionalism have shaped our constitutional development.

The Tradition of the Written Constitution: Text, Precedent, and Burke

This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritaran rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the laissez-faire constitutionalism of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of and the iconic, if unrepresentative, substantive due process of the late nineteenth and early twentieth centuries. If we are to draw a line of historical causation between the mid-century vested rights decisions and the so-called laissez-faire constitutionalism of the Lochner era, it must necessarily run through the watershed historical events of slave emancipation and the industrialization of labor, as well as the transformative constitutional changes set in motion by the Reconstruction amendmnets. To the exent that Lochner-era courts did constitutionalize economic liberty in a manner that warrants the label laissez-faire constitutionalism, they were inspired less by the Jacksonian vested rights jurisprudence that preceded the Civil War than by the constitutional and industrial revolutions that followed it.

The article analyzes the practices of local self-government in Ukraine in the field of decommunization of urban spaces in Kiev, Kharkov, Odessa, Dnieper. The peculiarities of the implementation of the policy of de-communization of the symbolic space indicate that since 2015, at the level of local macrocommunities, they have become public arenas of interpretations of the past. Their memorial symbolic structure reflects the competition between political actors representing competing commemorative orders. Local self-government practices have acquired their expressive specificity in each of the local macrocommunities. In particular, in Kiev, the policy of local self-government bodies is designated by us as “political”, which is associated with its status as the capital of Ukraine. It was this status that subordinated the symbolic space of local history and the retrospective reverse to historical names. Local authorities in Odessa and Kharkov carried out decommunization with the involvement, in addition to the political, pragmatic (Kharkov) and historical (Odessa) practices of renaming toponyms. Historical practice has become the core of the practice of decommunization of the symbolic space of the Dnieper. At the same time, local governments in all four cities of Ukraine were subjects of political competition (“symbolic struggle”) for the right to form and approve the idea of the legitimate order of the city's symbolic space. By referring to Ukraine's policy in the field of decommunization as one that has elements of symbolic violence, local governments fueled the social tension that accompanied the implementation of this policy.