Constitutional Discourse Research Articles

The Rule of Law: A Conceptual Dynamics in Constitutional Discourse.

The Rule of Law: A Conceptual Dynamics in Constitutional Discourse.

It Takes a Movement: Lawyers, Litigation, and Legal Theory in the Attack on Campaign Finance Reform

Abstract Recent Supreme Court decisions have hobbled campaign finance regulation and placed significant constitutional constraints on possible future reforms. But the Supreme Court has not acted alone. Major constitutional changes often require a substantial legal and political infrastructure, an ecosystem of actors, ideas, strategies, and tactics to instantiate new constitutional doctrine into law. In Big Money Unleashed, Ann Southworth examines the composition, development, organization, and intellectual underpinning of the legal movement that has worked to cripple campaign finance regulation. She chronicles the raising and testing of the key legal theories; the sources of political and financial backing for the movement; the combination of disparate groups into an antireform coalition; and the organization of what has proven to be a very effective litigation strategy. The result, she explains, has been the ascendancy of a powerful constitutional discourse that treats money as speech, campaign spending as freedom, and government regulation as censorship. The antireform litigation campaign on its own would not have been enough to transform the law; key appointments to the Supreme Court were essential. But the movement provided the Court with the cases, the arguments, and broader political support that are part of constitutional change.

Constitutional Reform of the Judiciary in Nepal: Achievements, Disappointments and Emerging Issues

Nepal’s seventy years of constitutional reform, aimed at fully separating powers between state institutions, began with optimism. These reforms primarily intended to transform the judiciary by incorporating the principle of separation of powers and empowering it to function independently from the executive and legislative branches. Over the past seven decades, Nepal has adopted six constitutions and is now implementing the seventh. However, the country's judicial history is marked by both accomplishments and disappointments. While successive constitutions express a commitment to the separation of powers and judicial independence, a practical realization has lagged, partly due to the absence of these principles as priorities in popular movements. Additionally, there appears to be a historical habit and discipline in Nepal that resists change through constitutional democracy. Systems for judicial review, along with institutional and strategic reforms to enhance the judiciary's performance, present a promising narrative of reform. Yet, the systematic assault on judicial independence, the institutionalized vulnerability of the judicial system, and the declining state of public access and trust reveal a more troubling story of judicial upheavals. The constitutional discourse in Nepal can be seen as a series of experiments. While these reforms have rhetorically committed to an independent judiciary, in practice, the constitutional provisions have lacked clarity and force, leaving the judiciary at a crossroads.

What’s Past is Prologue: Democracy in the Age of Originalism

Abstract This essay reviews three recent books grappling with the history and meaning of US constitutional democracy, written in a time when an originalist, conservative Supreme Court serves as the Constitution’s final arbiter. Democracies in America: Keywords for the Nineteenth Century and Today, edited by D. Berton Emerson and Gregory Laski, and The Nation That Never Was: Reconstructing America’s Story, by Kermit Roosevelt III, strive to appropriate originalist methods toward progressive ends. By contrast, Cass R. Sunstein’s How to Interpret the Constitution evinces a pragmatic skepticism of any such historically bound modes of interpretation. The tension between these approaches, I suggest, has shaped US constitutional discourse since the nineteenth century.

Which global constitution? The illiberal globalism of the US Supreme Court’s Dobbs decision

Abstract Fostering global constitutional discourse has long been anathema to the conservative legal movement within the United States. In Dobbs v Jackson Women’s Health Services, which overturned Roe v Wade’s right to an abortion, the court’s conservative justices relied on a globalized analysis. In this article, I identify three potential hypotheses to explain this deviation from conservative orthodoxy. Dobbs’ conservative globalism could be explained by attitudinal preferences, legitimation concerns or the influence of illiberal legal networks. I compare the proceedings of Dobbs against Carson v Makin and Kennedy v Bremerton School District, the other significant Constitutional cases from the court’s 2021–22 term, to deal with religious issues. These two other cases did not feature global citations, despite such citations being able to advance the Justices’ policy preferences or blunt legitimation concerns. Lending credence to the illiberal network hypothesis, Alito’s Dobbs opinion was reliant on a unique amicus briefing by a global network of anti-abortion scholars advocating on behalf of the natural family. Such network campaigns were absent from the proceedings of Carson and Kennedy.

Notwithstanding Minority Rights

This comment takes up the question of what considerations ought to shape our understanding of section 33. We do not engage directly with the attributes or failings of the current and limited judicial treatment of section 33. Instead, our focus is on the political ramifications of using section 33 in the current political climate. More specifically, we use Quebec’s Bill 21 as a reference point to highlight some deep issues about how section 33 has been integrated into and shapes constitutional discourse. Our analysis pays critical attention to the unique position of Muslim women in Quebec and is framed from the perspective of intersectional feminist equality thinking. From this grounding, we argue that the current legal treatment of section 33 establishes, contrary to the promises of proponents of the override, no equilibrium between parliamentary and judicial powers. Rather, section 33 unavoidably guarantees that majoritarian politics prevail, irrespective of the minority rights issues at play. Prioritizing majoritarian opinion and interests in this manner, we suggest, threatens great damage to the constitutional democracy we think we all should want. The result is a democratic comity in which critical aspects of substantive equality and participatory rights for the most vulnerable and marginal are negated.

Meaning, Metalepsis, Time-Travel

This article explores how people can come to experience constitutional conversations as meaningful. To this end, I reinterpret Habermas’s account of deliberative constitutionalism. For Habermas, constitutional discourses are not only rational procedures of opinion- and will-formation, but also sites at which a “world” gets generated. Deliberative politics, therefore, involves unruly and uncontrollable efforts to solicit others into the roles, orientations, and principles of constitutional practices. The result is a novel account of the relationship between constitutional procedures and the “anarchistic” politics that radical democrats celebrate. Ungovernable inventions of and affective identifications with roles, images, and peoples occur within articulate forms, including constitutional procedures. These aspects of Habermas’s thought push past binary oppositions between legitimate constitutional procedure and radical democratic uprisings. Habermas provides a framework for examining the forms of attentiveness by which actors can come to experience constitutional rules, roles, principles, and procedures as part of their world.

Wybrane kierunki badań z zakresu prawa konstytucyjnego na świecie – subiektywny przyczynek do dyskusji

At present, there is a global discussion on desirable and necessary changes to the constitution, common and non-derogable democratic values, and the scope of the omnipotence of the authorities elected in free elections. Politicians, representatives of organizations representing civil society, experts and representatives of the world of science participate in this discussion. The Polish constitutional discourse after 2015 was dominated by the consequences of ruthless circumvention of the provisions of the constitution by politicians in power. Even in these circumstances, however, other issues that are currently being debated in international constitutional forums must not be lost sight of. It seems that at least some of them may prove useful in the discussion on restoring constitutional standards.

Scaling up from everyday concerns to territorial politics and constitutional debate: deliberation among women in the Irish border area

ABSTRACT A gulf between constitutional and everyday perspectives is prevalent, and often overlain by gender divisions. To explore how this gulf can be bridged to allow for the inclusion of everyday concerns in constitutional discussion, we engaged with women in the Irish border area, a region where constitutional difference has striking effects in daily life. We held a series of small-scale deliberative cafés on cross-border health provision, which is linked to dysfunctions of regional governance and contentious constitutional issues. We asked if such open-ended deliberation allows everyday concerns to ‘scale out’ to wider territorial units and ‘scale up’ to the constitutional question. We found that the deliberative café, a radically inclusive method, facilitated a limited scaling up and out from everyday experience: participants collectively and credibly defined systemic dysfunctions on the regional level with policy implications for constitutional discussion. Although participants raised important political issues, they did not easily move from regional to constitutional discussion. We argue that this discursive disjuncture between regionalist policy and constitutional politics derives from a tension between wider regionalist state discourses (which determinedly avoid constitutional contention) and constitutional discourses (which lack a spatial dimension and assume one ‘ideal’ public rather than engage with many existing publics).

Israel's Constitutional Moment

AbstractAs the result of the initiation of the ‘judicial reform’ in January 2023, and the huge wave of public protest, Israel is currently undergoing a political turmoil which may develop into a fully fledged constitutional crisis. In this article I provide an account of the roots and causes of the present crisis from a public law theory perspective. In particular, I discuss the relationship between constitutional and administrative law in Israeli law. I argue that the core of Israel's constitutional structure has always been the institutions of administrative law as created and developed during the ‘administrative revolution’ of the 1980s. In contrast, Israel's constitutional law has always been a peripheral in the core structure of judicial review over the political branches. Contrary to common wisdom, I argue that the ‘constitutional revolution’ of the mid-1990s has not changed this core structure, but rather provided an external belt of normative barricades for this core structure. Accordingly, and despite the pretentious constitutional discourse developed in the 1990s by the Court, Israel was and still is a monistic democracy with no true constitutional layer of norms that enjoys higher status vis-à-vis regular legislation.

Dobbs v. Jackson Women’s Health Organization: The Epitaph for Roe v. Wade

Abstract Since the Roe v. Wade decision was announced (1973), the question of abortion has constituted an important element of American constitutional discourse. This article analyses the most recent decision of the United States Supreme Court on this matter, i.e. Dobbs v. Jackson Women’s Health Organization, which rejected the thesis that the Constitution establishes the right to terminate pregnancy. It is possible to identify three fundamental points of the Court’s opinion. First, the Court allowed lawmakers to accept an ontological assumption that a foetus is a human being. Second, the decision was rooted in the doctrine of moderate originalism and in the concept of substantive due process, limited by historical factors. Third, the Supreme Court adopted a liberal interpretation of the stare decisis principle, consenting to the overturning of precedents even if they introduced new civil rights. The author contends that it is highly unlikely that the decision will constitute the last word of American jurisprudence on the question of abortion.

Colonial Counterfactuals, the American Separationist Mindset, and Open-Minded Discourse on the Establishment Clause

This work first develops the idea of an American Separationist Mindset—a deeply rooted and often unthinking supposition that the strict separation of church and state is the only defensible church-state arrangement under the Establishment Clause of the United States Constitution. Such a Mindset can make arguments for religious accommodationism difficult to be assessed openmindedly in contemporary constitutional discourse. The essay next surveys the potential of a counterfactual history of topics long thought settled to weaken prevailing views and treasured interpretations so to allow greater critical engagement with alternative assessments. The work in turn deploys a counterfactual reconstruction of Maryland’s colonial Anglican establishment. This account imagines the founding vision for Maryland’s establishment of Anglicanism developed by Rev. Thomas Bray as having been sustained. The cogency of this counterfactual can assist contemporary constitutional discourse by weakening the prejudicial potential of the American Separationist Mindset.

The World of Constitutionalism is Not Flat

AbstractIn recent years, the emerging field of comparative constitutional law has been swept by a new approach with a scientific allure known as the Large-N approach. The methodology of this approach requires flattening the world of constitutional law by reducing the meaning of constitutional determinations into countable data. One of the difficulties in resisting this trend is that while many constitutional scholars have offered accounts that do not flatten the world of constitutional law, their methodology remains unarticulated and rarely discussed. Paul Kahn is one of the few scholars who offered an account of how to conduct non-doctrinal research of constitutional law. This Article aims to distil several principles of Kahn’s methodology, discuss its limitations, and demonstrate why it is superior to the Large-N approach. To achieve these goals, I chose to focus on three books on the German constitutional system that are based on dissertations written at Yale University, where Kahn teaches. Based on my discussion of these three books, I argue that Kahn’s methodology offers an approach which I dub the “Rich Picture” approach (or Rich-P). The Rich-P approach exposes that participants in a constitutional discourses understand constitutional materials, such as constitutional documents or judicial opinions, through a conceptual array that varies between legal orders. Without acknowledging the conceptual “eyeglasses” we wear when investigating constitutional determinations, measurements of the entire world of constitutionalism may lead to catchy soundbites and tweets, but to conclusions that are misleading at best.

The constitutional quandary of social rights: Questions in times of the Polish illiberal turn

Abstract Scholars have intensely debated the justiciability of constitutional social rights, an essential aspect of transformative constitutionalism in Central and Eastern Europe. This article examines the reasons for displacing social rights in the Polish constitutional discourse and the obstacles in the way of these rights’ gaining normative substance. Polish society came out of socialist authoritarian rule with a strong attachment to social welfare but quickly embraced the neo-liberal economy. However, this attachment was recently recalled by the electoral successes of the social welfare platform of illiberal forces, which prompts questions about the place of social welfare in the constitutional settlement. The article relies on an inquiry into the constitution-making process and the practice of constitutional review during the global financial crisis. It argues that the displacement of social rights has been contingent upon the specific political and intellectual climate of stimulating a free-market economy and crisis-driven austerity, despite minority voices for alternative solutions. It was also due to structural weaknesses of constitutional review, operating in a challenging institutional and political context. This case study raises broader questions about whether and how constitutionalism can gain popular support in times of populist challenges by addressing persisting societal problems.

The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire by William Partlett and Herbert Küpper (review)

Reviewed by: The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire by William Partlett and Herbert Küpper W. E. Butler Partlett, William and Küpper, Herbert. The Post-Soviet as Post-Colonial: A New Paradigm for Understanding Constitutional Dynamics in the Former Soviet Empire. Elgar Monographs in Constitutional and Administrative Law. Edward Elgar, Cheltenham and Northampton, MA, 2022. xii + 269 pp. Notes. Bibliography. Index. £95.00. Unlike the American experience where the Constitution has remained in force since 1789 with infrequent amendments, the first ten coming rather quickly, Russia in the twentieth century experienced several generations of constitutions between 1905 and 1993, all linked expressly or otherwise to fundamental changes in societal development and held out as a model for other state systems to emulate. Western political science and comparative constitutional law have found it instructive to view such constitution-making through the prism of 'authoritarian' models as juxtaposed with 'democratic', usually acknowledging that pure versions of either did not exist. The present volume offers an alternative reading to the authoritarian/post-authoritarian perspectives that have dominated comparative constitutional discourse by [End Page 187] suggesting a post-colonial lens be superimposed on constitutional-making processes. The category of 'post-colonial' is seen as an additional, not a replacement, perspective which the authors hope will improve our perceptions of 'constitutional dynamics'. The (former?) colonial power is Russia in their analysis, which acquired 'colonies' that fell into two groups: the former Soviet republics within the USSR, the 'inner Empire'; and the satellite States, formally independent but under Soviet domination (Central Europe, Mongolia and the Baltic States), here styled as the 'outer Empire'. Hungary is singled out as a case study of constitution-formation and given a separate chapter. Omitted from consideration are areas where the Soviet authorities exercised 'soft power' — Yugoslavia, Albania, China, North Korea, Vietnam, Kampuchea, Laos, Cuba — and others once classified as countries 'of a socialist orientation'. From the outset the authors avoid the key issue of what differentiates a 'post-authoritarian' and a 'post-colonial' jurisdiction as being beyond their scope. They do suggest that 'post-authoritarian' implies a progressive transition towards liberal democratic constitutionalism, a limited State, a strong judiciary, and an emphasis on individual, rather than collective, rights. One immediate problem is that 'colonial' is a pejorative term that engages multiple (two or more) subjects of international law, whereas 'authoritarian' is a domestic law term confined to a single jurisdiction. There is no definition of 'colonial' in international law; usually it is explained by examples. On a broad reading, every historical situation in which a state exercises, or claims to exercise, influence or authority over a people, nation, or state outside its boundaries is eligible for possible classification as a 'colony'; often the term is associated with flows of migration and settlement. Self-awareness may also be a factor. Russia until 1917 declared itself to be an empire and from at least Petrine times forward was widely so regarded — a self-perception that some would regard as automatically making Russia a colonial power. The authors concentrate on the dissolution of the former Soviet Union but do not really address the Russian Federation as a colonial or post-colonial entity. Modern Russia is said to contain one hundred or so ethnic groups, some more or less concentrated geographically, others dispersed throughout the land. The Russian Constitution recognizes, as of October 2022, eighty-nine subjects of the Federation (or should some or all be designated as 'colonies'). All eighty-nine have a constitution or equivalent constitutive document and are bound together by international treaty. An authoritarian paradigm treats Russia as a single entity for these purposes; a colonial paradigm, if applicable, would take a different perspective. Within the limited scope of this study, the authors work with a very broad brush. They are no doubt correct that the colonial/post-colonial paradigm [End Page 188] offers insights into constitution-formation and collateral issues not readily observable through alternative paradigms. All of which enriches the discipline of comparative law. Omitted from their study and virtually all others in this field is a consideration of the twenty-one-volume verbatim...

Examining the living metaphor in the Indian Constitution

One popular understanding of the Indian Constitution is that it is a living document that evolves with time. Even though this metaphor has been used consistently by all three branches of the Indian state, its use in Indian legal texts is underexplored—as of most metaphors generally. In this article, we critically evaluate the application of the living metaphor in Indian constitutional discourse. We first provide an overview of the use of metaphors generally, and especially in the legal field. We then identify the origins and trace the use of the living metaphor by studying select Supreme Court judgments which have likened the Constitution to a living text and analyse the Court’s reasons, if any, for doing so. A comparative analysis of how the Canadian, US, and Australian courts have employed the living metaphor demonstrates how the Indian experience differs in its application of the metaphor. We find that the Supreme Court has used different variants of the living metaphor, primarily to expand the ambit of Part III of the Constitution. However, due to the inconsistent and unreliable use of this metaphor, we find that this has the potential to lead to illiberal results. We thus make a case for the formulation of a doctrine of living constitutionalism which we think will be more resilient to anti-democratic challenges.

Vietnam’s Mixed Constitution and Human Rights

Abstract This article develops a discursive explanation of mixed constitution: mixed constitutional ideas and discourse generate mixed constitutional design and practice. On that base, it explores the nature, factors, and functions of the mixed constitution in Vietnam. The emergence of competing constitutional ideas (Confucian, socialist, liberal, universal) animates a constitutional discourse in which different actors adhere to different ideas. Consequently, the 2013 Constitution of Vietnam embodies a mixture of the ideas in its provisions on political institutions, economy, and especially human rights. The enforcement of the constitution induces competing claims to constitutional meanings. The mixed constitution is shaped by path dependency and global diffusion of constitutional ideas. It functions as the base to constrain ideational monopoly and widen the public discourse on constitutional development.

La Costituzione e il ruolo dell’Islam in Libia dall’indipendenza alla caduta di Moammar Gheddafi: origini e prospettive

SOMMARIO: 1. Introduzione - 2. La monarchia di Idris Al Senussi e la Costituzione del 1951 - 3. L’Islam nella Libia di Re Idris - 4. Moammar Gheddafi e la Terza Teoria Universale: l’Islam all’interno del “Nuovo” sistema libico - 5. Gheddafi e il movimento islamista - 6. La caduta di Gheddafi, la Dichiarazione Costituzionale del 2011 e l’Islam - 7. L’ultima bozza del 2017 e i contrasti infiniti - 8. Brevi riflessioni.
 The Constitution and the role of Islam in Libya from independence to the fall of Moammar Gaddafi: origins and perspectives
 ABSTRACT: This study aims to retrace Libya's constitutional path from Independence, obtained in December 1951, up to the "post-Gaddafi" era, which began with his fall in October 2011 and where the agreement on a new Constitution is still today - after more than ten years - one of the thorniest issues in the construction of a real Libyan State. Particular emphasis will be given to the religious aspect that has characterized the Constitutional Charter of Libya in its short national history and to the religious challenges faced in the different historical phases. The study will be divided into three parts. The first one will try to frame the constitutional discourse in the new independent Libya under the monarchy of King Idris al-Senussi. In the second part, will be addressed to the drastic changes that occurred with Moammar Gaddafi's rise to power. Finally, in the last part will try to draw a picture of what the situation is today and to understand what are actually the obstacles that are holding back an agreement between the rival factions (East and West) on a shared Constitution.

헌법재판소의 국제인권규범 활용에 대한 검토

Since the World War, international cooperation has been made to preserve the peace and interests of the human community, and representative results include the creation of international organizations and the establishment of international human rights treaties and norms(conventions). In particular, as the issue of human rights protection is recognized as a significant governmental matter, each country is striving to find a means to secure the legal effectiveness of international human rights norms within the country. However, given that the contents of international human rights norms are generally similar to the contents of the constitutional basic rights of the countries that accepted them, it has been discussed that it is necessary to incorporate international human rights norms into the Constitution and recognize the same effect as the Constitution (or constitutional basic rights). However, there is a counterargument that the constitutionalization of international human rights norms cannot be evaluated as desirable because it could undermine the foundation of the national legal system and people’s sovereignty. In addition, it may be questioned whether the constitutionalization of international human rights norms must be premised in securing the legal effectiveness of international human rights norms and their usefulness in constitutional adjudication. This article, focusing on the actual cases of the Constitutional Court of Korea, reviewed what legal and systematic status the Constitutional Court has recognized in international human rights norms and how they have been used in actual adjudication. According to this review, it seems the Constitutional Court sometimes directly used international human rights norms as constitutional norms(standard of review), but a close analysis of related decisions shows that the Court does not use international human rights norms as a direct criterion for constitutional adjudication and uses them as supplementary material for interpreting constitutional basic rights and principles. In particular, the Constitutional Court shows a pragmatical attitude of using it as a supplementary material for constitutional interpretation without judging the legal status of international human rights norms. The Constitutional Court's strategy of using international human rights norms as significant material for constitutional adjudication without shaking the legal system is a dynamic constitutional interpretation process that can localize the universal content of international human rights norms while maintaining the public autonomy of members of the legal community. Through this, international human rights norms will be able to secure a balance of universality and locality, legitimacy and effectiveness, abstraction and specificity, moral legitimacy and democratic-political legitimacy. However, the Constitutional Court is generally considered passive in using international human rights norms in constitutional interpretation, and, in reality, only a few international human rights norms are used, and furthermore, there is no in-depth argument for justification of use of international human rights norms in cases, so it is confirmed that international human rights norms are used superficially and decoratively. In order to improve this, it is necessary to consider preparing a system or practice that actively refers to and properly considers international human rights norms in constitutional adjudication. Above all, it is necessary to fully review related international human rights norms and discussions in the process of constitutional interpretation and establish a faithful method of argumentation of connection and integration that ultimately converts discussions of international human rights norms into constitutional discourse.

Constitutionalizing Women’s Equality in India: Assessing the Sabarimala Decision

In 2018, in Indian Young Lawyers Association (IYLA) v State of Kerala, popularly known as the Sabarimala case, the Indian Supreme Court struck down a rule that prevented girls and women in the 10-50 age group from entering the Sabarimala temple in Kerala. The Court, in a 4-1 decision, held that the temple rule violated women’s right to equality and right to worship and was not protected under the right to religious freedom. Sabarimala is a landmark decision. For the first time,the Court insisted that all discrimination must be tested against constitutional values and discrimination that perpetuates stereotypes and disadvantage will not withstand constitutional scrutiny. It emphasised the importance of substantive equality in contesting discrimination against women and challenging the structures of oppression that exclude women. Finally, the Court linked women’s equality rights with equal citizenship. Focusing on the Sabarimala decision, this paper evaluates the recognition of women’s rights in Indian constitutional jurisprudence and assesses its transformative potential. The paper aims to place women’s equality rights squarely within constitutional discourse; to further develop understandings of justice that will constitutionalize women’s equality rights and ensure their inclusion in constitutional doctrine and discourse and to create salient changes in women’s everyday lives.