Constitutional Debate Research Articles

Constitutional identity and judicial cooperation in civil matters in the European Union – An ace up the sleeve?

The reliance on constitutional identity by EU courts and governments has been widely discussed in legal scholarship, but less attention has been devoted to the impact of constitutional identity-based arguments on the evolution of judicial cooperation in civil matters. Member States have increasingly relied on constitutional identity in the area of private international law to claim the application of their own law or reject the recognition of foreign situations. Constitutional identity can be invoked through the public policy exception, to avoid the normal operation of private international law rules. Member States can also refer to constitutional identity when staying outside the adoption of EU private international law rules, especially regarding family law. Constitutional identity can thus impede judicial cooperation in civil matters and contribute to the fragmentation of EU private international law. Constitutional identity does not grant unfettered freedom to Member States, however. The autonomous private international law rules of the Member States must respect EU fundamental principles if the situation demonstrates some connection to EU law and the public international law obligations assumed by the Member State concerned.

Interring the Unitary Executive

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington. Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

Immigration challenges to Scotland after Brexit

The negotiations regarding the withdrawal of the UK from the European Union have raised a number of questions relating to the future relationship between the UK and the EU. The impact of Brexit on Scotland will be considerable in economic terms and in terms of employment in the case of a ‘no deal’ with the EU. Britain’s withdrawal from the EU has also had an impact on the Scottish constitutional debate: the referendum results have revived the independence debate and led to calls for more devolved powers on immigration. Taking into consideration the restrictive orientation of the British Conservative-led government on immigration, the Scottish government is faced with questions on how to deal with immigration after Brexit. Brexit raises both challenges and opportunities for decision-makers in Scotland as relates to policies dedicated to immigrants in the context of the nation-building project. Using official government reports on immigration and Brexit as well as election manifestos, the following paper discusses the evolution and orientation of immigration in Scotland after leaving the EU and the resulting challenges and opportunities for the decision-makers in terms of the nation-building project in Scotland.

At the Origins of Personalism of the Basic Law: A Journey through the German Post-War Constitutional Debates (1946-1949)

At the Origins of Personalism of the Basic Law: A Journey through the German Post-War Constitutional Debates (1946-1949)

Redeeming the National in Constitutional Argument

In many countries beyond the traditional comparative constitutional law canon, the advocates of constitutionalism are increasingly appealing to a supra-national constitutional discourse frequently grounded in best practices for constitutionalism. This trend has helped to foster a nationalistic backlash which arguesin which constitutional advocates argue that constitutions should not reflect international constitutional norms but instead must reflect historically-grounded tradition or identity. How should advocates of constitutionalism understand and respond to this backlash? We argue that linking a critical interpretation of national history and the text of the national constitution to constitutionalism can help to counter this nationalist backlash, particularly in constitutional adjudication. Looking at Russia and Sri Lanka, we illustrate how this process of “redeeming the national” can provide new arguments for those interested in advancing the project of constitutionalism. We argue further that this kind of constitutional argument can also help to uncover ways of adapting constitutional principles to particular national contexts.

Wartime Pamphlets, Anti-English Metaphors, and the Intensification of Antidemocratic Discourse in Germany after the First World War.

The article establishes heretofore neglected links between the German anti-English pamphlets during World War I, on the one hand, and right-wing antidemocratic theory after the war, on the other, by engaging with their central argumentative forms. Particularly the metaphors of the English as "merchants" or "peddlers" and England as a mechanical civilization in contradistinction to German organic culture facilitated the transfer of arguments between the discourses on war and democracy, respectively. The metaphors were old, but they were deepened by concrete enmity and intensified domestic constitutional arguments by underscoring the fundamental unsuitability of democracy for Germany.

Protecting Climate Change Law from a Revived Nondelegation Doctrine

In an era of political gridlock, a potential revitalization of the nondelegation doctrine threatens the Environmental Protection Agency’s existing framework for regulating greenhouse gas emissions and addressing the urgent threat of climate change. At its apex, the nondelegation doctrine briefly constrained permissible delegations from the legislature to the executive branch after two Supreme Court decisions in 1935. The doctrine has since weakened under the lenient “intelligible principle” standard. That standard today allows the legislative branch to make broad delegations to administrative arms of the executive branch, which then use technological and bureaucratic expertise to clarify, implement, and enforce statutes. The result is today’s administrative state—the federal government’s answer to the demanding complexities of modern society, the expansive duties of the federal government, and intense political gridlock in the legislature. However, with multiple Supreme Court Justices indicating support for reviving a stricter form of the nondelegation doctrine, many key, broad agency delegations are under threat, including the Clean Air Act’s delegation to the Environmental Protection Agency requiring regulation of greenhouse gas emissions. The urgency of the fight against climate change, combined with the political difficulty in passing new legislation, necessitates careful consideration of what revived nondelegation doctrine may require of legislative tasks assigned to the executive. In this note, I analyze the potential threat and its solutions and conclude that a revived nondelegation doctrine poses a substantial threat to the Clean Air Act’s delegation to the EPA. For this reason, intricate constitutional arguments and carefully crafted legislation may both be necessary to preserve the EPA’s ability to regulate greenhouse gas emissions.

Constitutional touchstones: Peace processes, federalism, and constitution-making in Myanmar

Abstract A constitutional touchstone is a document that articulates alternative constitutional proposals and is a symbolic resource in discussions of constitutional reform. Such documents keep alive opposition constitutional aspirations. Constitutional touchstones enhance understanding of the influence of constitutional history on contemporary efforts at peace and constitutional reform. Through successive constitutional reform processes, constitutional touchstones articulate future visions for reform and emerge as a reference point for political dialogue on peace and constitutional change. Through the case of Myanmar, I consider the influence of constitutional touchstones on contemporary constitution-making and trace demands for federalism through four stages of peace processes in Myanmar. Constitutional touchstones are important considerations that shape the terms of a peace process and condition, though do not determine the limits of constitutional reform. Presenting an alternative view to the idea that constitution-makers and peace negotiators in a globalized age are primarily focused on best practice or the most suitable comparative models, I draw attention to the ongoing salience and social life of past constitutional debates in contemporary peace processes.

La propiedad frente a la hoja en blanco: tradición constitucional y derecho comparado

Motivado por el acuerdo constitucional alcanzado en Chile en 2019, el presente artículo analiza la historia constitucional del país y el derecho comparado para identificar los posibles temas centrales de una futura discusión acerca de la protección constitucional de la propiedad en Chile. Como punto de partida, argumenta que la metáfora de la ‘hoja en blanco’, instalada para ilustrar el mecanismo de reemplazo constitucional a que daría lugar el ‘Apruebo’, no implica que la redacción de una nueva constitución vaya a desentenderse del pasado. Por ello, en segundo lugar, el artículo revisa brevemente la regulación constitucional de la propiedad vigente y las dificultades que ha presentado en la práctica, para luego discutir los problemas que tanto estabilidad como cambio representan para la regulación del derecho de propiedad. A continuación, recurre a la historia constitucional chilena para argumentar que existe un mínimo común denominador en materia de protección constitucional de la propiedad, cuyo origen políticamente transversal debiera mantenerlo a salvo de grandes discusiones. Finalmente, compara el contenido de la Constitución vigente que no forma parte de ese mínimo con otros sistemas constitucionales, encontrando que su mayor parte se enmarca dentro alguna de las corrientes dominantes del constitucionalismo contemporáneo. En consecuencia, concluye que el futuro debate en la materia debiera concentrarse en unos pocos temas que no forman parte de la tradición constitucional chilena ni cuentan con tratamientos uniformes en el derecho comparado, como el estatus de las aguas, la propiedad indígena y las limitaciones legales con efectos expropiatorios.

SOCIO-ECONOMIC RIGHTS IN ZIMBABWE'S NEW CONSTITUTION

1. Introduction The constitutionalisation and justiciability of socio-economic rights has always been debated among scholars and practitioners. While everyone agrees that every constitution should encompass socio-economic rights there is still disagreement on whether they should be under the Bill of Rights or Principles of State Policy. The constitutional debate in Zimbabwe also included such discussions which resulted in the inclusion of socio-economic rights as both National Objectives (Principles of State Policy) and Declaration of Human Rights (Bill of Rights), under chapter two and four respectively. Though this is a welcome move towards the progressive realisation of socio-economic rights the big question remains whether this will improve the protection and promotion of these rights, subsequently bringing change to people's lives. This overview provides a critical analysis of the new constitution and offers recommendations for the improvement of the socio-economic rights regime in Zimbabwe through courts, state institutions and government. 2. The new Constitution The preamble of the new constitution (1)) recognises the supremacy of God and gives special recognition to the liberation struggle, natural resources, diverse culture, democratic values, rule of law and fundamental human rights. It values the principles of rule of law, fundamental human rights and freedoms, gender equality, good governance and representation of the electorate and places an obligation to the State to protect and promote these values and principles. Though the preamble of the constitution has no legal standing it spells out the purpose of the constitution and it reflects the goals and commitment of government. It is an introductory statement and courts can refer to it on cases pertaining to the constitution as reliable evidence of what the state has promised to achieve and provide for citizens. The preamble commits the state to uphold and defend fundamental human rights and freedoms, which include socio-economic rights. The protection and promotion of socio-economic rights serve to support the commitments set in the preamble, such as transparency, freedom, tradition and culture, fairness and equality. In countries such as South Africa where the preamble is not legally binding, the courts have interpreted the commitments highlighted in the preamble in, for example, the Bato Star Fishing (PTY) LTD vs Minister of Environmental Affairs and Tourism case, interpreting the commitments in the preamble as an obligation on the state. In addition to traditional civil and political rights, the new constitution contains a full catalogue of economic, social, cultural and environmental rights. This includes every person's right to an environment that is not harmful to their health or well-being (section 73); and an obligation to protect the environment for the benefit of present and future generations, through reasonable legislative and other measures. Section 75 (rights to education) entitles every citizen and permanent resident of Zimbabwe to a basic state-funded education, including adult basic education and further education, which the state, through reasonable legislative and other measures, must make progressively available and accessible. This is in line with article 13 of the International Covenant on Economic, Social and Cultural Rights (CESCR). It remains to be seen whether the Government will implement the constitution and enforce the right of girls in some rural areas of access to education where they have been hindered by traditional practises. Section 76 (right to health) confirms the right of every citizen and permanent resident of Zimbabwe to have access to basic healthcare services, including reproductive health. Every person living with a chronic illness has the right to have access to basic healthcare services for the illness. No person may be refused emergency medical treatment in any health-care institution. …

Los tribunales constitucionales frente a la emergencia sanitaria por la COVID-19

El presente texto tiene por objeto analizar la posición privilegiada de los tribunales constitucionales frente a la custodia integral y la estabilidad de los textos constitucionales. Los recientes escenarios a nivel mundial han puesto de manifiesto la necesidad de que dichos tribunales respondan a las exigencias sociales, sobre todo, cuando el actuar de los poderes públicos tiende a menoscabar el ejercicio adecuado y eficaz de los derechos, libertades y principios reconocidos en los textos constitucionales y en el derecho internacional de los derechos humanos. Para ellos la interpretación y argumentación constitucional es un bastión que les permite analizar la validez de los actos de los poderes públicos en su búsqueda por contener sus actuaciones, aunque estas limiten o restrinjan derechos fundamentales y resulten, por tanto, contrarias a los valores sobre los que se sustenta el estado constitucional de derecho.

O COMPARTILHAMENTO DA GUARDA DA CONSTITUIÇÃO BRASILEIRA COMO PRESSUPOSTO DA ORDEM DEMOCRÁTICA: THE SHARING OF THE BRAZILIAN CONSTITUTION GUARD AS A PERGREGATION OF DEMOCRATIC ORDER

The constitutional guard was the subject of clash between doctrinaires in the early twentieth century, but its foundations and endorsements of which authority or organ is the sole and exclusive responsible for protecting the democratic order still finds itself in the current constitutional debate. Constitutional protection is considered of high relevance and complexity in contemporary times in view of the prominent intrusion and lack of limitation of political and / or legal powers. From such analysis we extract many emblematic cases of the politicization of justice and judicialization of politics in Brazilian law. On the other hand, the appointment of only a single authority or body as custodian or constitutional protection makes the democratic system fragile. Thus, using a theoretical-legal methodology with deductive reasoning, through doctrinal and jurisprudential analysis will be observed important factors that directly influence the enhancement of the Brazilian Judiciary as the main constitutional protector, granting, however, as a solution, a guard shared between the powers of the State.

Institutions and Scientific Progress

Scientific progress has many facets and can be conceptualized in different ways, for example in terms of problem-solving, of truthlikeness or of growth of knowledge. The main claim of the paper is that the most important prerequisite of scientific progress is the institutionalization of competition and criticism. An institutional framework appropriately channeling competition and criticism is the crucial factor determining the direction and rate of scientific progress, independently on how one might wish to conceptualize scientific progress itself. The main intention is to narrow the divide between traditional philosophy of science and the sociological, economic and political view of science that emphasizes the private interests motivating scientists and the subsequent contingent nature of the enterprise. The aim is to show that although science is a social enterprise taking place in historical time and thus is of a contingent nature, it can and in fact does lead to genuine scientific progress—contrary to the claims of certain sociologists of science and other relativists who standardly stress its social nature, but deny its progressive character. I will first deal with the factual issue by way of introducing the main concepts and mechanisms of modern institutional theory and by applying them to the analysis of the cultural phenomenon that we call modern science. I will then turn to the normative issue: what is the appropriate content of the institutional framework, for scientific progress to emerge and be sustained at which level should it be set and by whom? Addressing this problematic is equivalent to conducting a constitutional debate leading to a Constitution of Science.

„Le roi est mort – vive le roi!” vom Kaiserreich ins Königreich Jugoslawien 1918/1919

The conclusion of the First World War also entailed the end of Slovenian loyalty to the Habsburg crown. A Slovenian caricature of Emperor Francis Joseph published on December 1, 1918 in the satiric newspaper Kurent marked a first strong sign of the break with old traditions and loyalty. Until the collapse of the monarchy, such an attitude towards the Emperor had been inconceivable among the Slovenes. But the short-lived State of the Slovenes, Croats and Serbs and its successor the Kingdom of the Serbs, Croats and Slovenes provided the opportunity to discard everything old and create a new South Slavic understanding. These changes posed rather difficult issues on different levels to Slovenian political leaders. The new state had to be constituted bottom-up from its foundations. The first years of the new Kingdom proceeded under the pressures of elections, constitutional debates, new territorial border questions, economic changes, and the introduction of a new currency, among others. Many of these issues led to political crises which destabilized the young state. At the same time, the Slovenian political parties often did not agree on key political issues. Consequently, the Slovenes faced turbulent times in the post-imperial transition period.

High noon for the Union?

Next May, the SNP will be defending a fourteen year record in office in Edinburgh. Typically, governments find it difficult to secure electoral success in such circumstances. The 'costs of government' – the almost inevitable gap between a party's initial promises and voters' perceptions of what has actually been achieved – usually take their toll at the ballot box (Green and Jennings, 2017). Yet, even though the SNP administration has had its fair share of difficulties and disappointments during its now lengthy time in office, just how well it has met the challenges of the last 14 years may come to matter little in voters' minds when they decide how to cast their ballot.

The Rise and Demise of Constitutional Duties in Israel

In many constitutions, constitutional duties appear alongside constitutional rights. However, the history of constitutional duties, unlike the history of constitutional rights, is a neglected topic. This article is a case-study of the history of constitutional duties in Israel. The article documents the appearance of duties in Israeli constitutional texts and debates in the 1950s and shows that the interest in duties was connected to the view that a major role of constitutions was to serve as educational, rather than legal, texts. The article then analyzes the decline of duties discourse in Israel pointing to the 1960s as the watershed decade in which duties disappeared. Finally, the article discusses a number of possible factors that led to the waning of the notion of constitutional duties, focusing specifically on the juridification of Israeli law and society. Fluctuations in interest in constitutional duties, the article concludes, are connected to changing understandings of the nature of constitutions, and, more broadly, to shifts in the relative importance of law and lawyers in society.

Census politics in Northern Ireland from the Good Friday Agreement to Brexit: Beyond the ‘sectarian headcount’?

While ethno-national demography has featured significantly in political and scholarly debates about Northern Ireland, little attention has been paid to the politics of the Northern Ireland census itself. This article addresses this gap by exploring census politics since the 1998 Good Friday Agreement. It demonstrates that the border poll provision of the Good Friday Agreement and Brexit have increased the political salience of census results, with the 2021 census now being anticipated by many as a potential referendum trigger. Against this background, I argue that new census questions – on religious background and national identity – have had significant consequences for debates about the constitutional future. Introduced in order to satisfy requirements stemming partly from equalities legislation, an unintended consequence of the religious background question has been to reinforce ‘two communities’ narratives in constitutional debates, whereas the national identity question has served to problematise assumptions about relationships between identity and constitutional preferences.

Entre patriotas y polizones: polémicas letradas sobre los americanos en la prensa periódica (1810-1812)

<p>Las propuestas de la prensa hicieron uso en los años 1810-1812 del concepto de <em>americanidad </em>como una materia maleable desde la cual señalar injusticias y arbitrariedades. Para ello, los escritos públicos recurrieron a perspectivas en las que se construyeron aliados y enemigos y se utilizó el humor satírico como vía para suscitar la afinidad del lector. La flexibilidad del nombre <em>americanos</em> se utilizó como metáfora de la debilidad de autonomía política de las distintas provincias del continente americano. Nos interesa analizar al respecto algunas producciones de Juan López Cancelada que generaron respuestas vehementes del diputado de Tlaxcala en las Cortes de Cádiz, José María Guridi Alcocer, y de Servando Teresa de Mier. Estos tres pensadores hicieron uso de la prensa periódica para concretar o plantear soluciones políticas que los debates constitucionales erraban en contemplar o profundizar y lo hicieron recurriendo a los términos de patriotas y polizones.</p>

Estado y Pueblo Mapuche. Una mirada desde el Derecho y las políticas públicas, Francisco Bedecarratz S. (director). Santiago de Chile, RIL Editores y Universidad Autónoma de Chile, 2020.

No aplica.

Political but incontestable: A review of ‘political constitutionalism’ in China

AbstractAlthough all constitutional issues are political in essence, ‘political constitutionalism’ as a school is specifically critical of court-centred understandings. Such a school of political constitutionalism has emerged in Chinese constitutional debates since 2008. Its rapid development has both enriched and challenged Chinese constitutional studies, but it has also left certain impacts on the political reality of China. Is this school comparable to the Western political constitutionalism tradition and how is ‘the political’ defined? By discerning three political registers from the school’s main arguments as the ‘constitutional moment’, ‘polity’ and ‘governance’, this article aims to critically examine the aims and functions of political constitutionalism in China and to argue that while constitutional reflexivity requires contestability, the political registers of this wide-ranging school in fact deny it.