Constitutional Fidelity Research Articles

Upholding Sovereignty and Constitutional Mandates: The Philippine Supreme Court’s Ruling on the Tripartite Agreement for Joint Marine Seismic Undertaking in the South China Sea

Abstract This article examines the Philippine Supreme Court’s landmark ruling declaring the Joint Marine Seismic Undertaking (jmsu) unconstitutional, emphasizing its implications for Philippine foreign policy and territorial disputes in the South China Sea. The jmsu, an agreement between China, Vietnam, and the Philippines for joint exploration in a contested maritime area, was challenged for contravening the Philippine Constitution’s provisions on national sovereignty over natural resources. The decision reaffirms the Philippines’ sovereign rights and sets a legal precedent emphasizing the primacy of the Philippine Constitution in international agreements on natural resource exploration. This article discusses the decision’s significant impact on Philippine foreign policy, the ongoing territorial and maritime disputes in the South China Sea, and its wider relevance to diplomacy and international law. The ruling marks a critical affirmation of Philippine sovereignty and adherence to legal norms, shaping the country’s future diplomatic relations and stressing the importance of constitutional fidelity in international agreements, especially within the contentious South China Sea areas.

Restoring Faith in EU Values: Mutual Trust and Systemic Deficiencies in the Member States

In the evolving context of European Union public law, mutual trust has risen as a pivotal structural principle, anchoring the horizontal relationship among EU Member States, particularly in areas falling outside the scope of application of EU law. Its significance has expanded, moving beyond just safeguarding fundamental rights to fully embracing the broad spectrum of values articulated in Article 2 TEU. Informed by the mutual accountability of Member States, this principle is instrumental in assessing their commitment to the values delineated in Article 2 TEU. This article offers to differentiate between two scenarios: instances where mutual trust is undermined by violations of fundamental rights, and those where it is challenged by breaches of structural values, such as democracy and the rule of law. The article posits that systemic deficiencies in a Member State’s adherence to the EU’s structural values threatens the essence of mutual trust, demanding a reconsideration of the manner of application of this principle. Through the lens of the transformations following the Lisbon Treaty and contemporary hurdles this article underscores mutual trust’s crucial role in ensuring Member States’ constitutional fidelity to EU structural values. The article concludes by championing a nuanced application of the mutual trust principle – a stance that robustly preserves the core of Article 2 values, quintessential to European identity, without compromising fundamental rights or overlooking other EU public interests.

THE ANTI-OLIGARCHY POPULAR CONSTITUTION

THE ANTI-OLIGARCHY POPULAR CONSTITUTION

Wprowadzenie do zagadnienia posłuszeństwa konstytucyjnego

The time of changes taking place in the constitutional order, both constitutional and fait accompli changes, is undoubtedly an interesting opportunity for in-depth analyses. These analyses can be made from various perspectives. The authors focus on three basic perspectives – that of law, philosophy and political science – in order to investigate what they refer to as constitutional fidelity. The limited framework of the paper only permits providing an introduction to the subject. In this text, the authors indicate the basic categories of constitutional fidelity, reflect on the dimensions of this fidelity, and try to propose a solution to the puzzle of the future of Polish constitutionalism. The entire analysis repeatedly refers to sociological and, to some extent, psychological categories, because constitutional fidelity is, first of all, a proper civic attitude and a relationship, the awareness of which is often only discovered at a moment of crisis.

What Has Athens to Do With Philadelphia?

Lee Strang’s Originalism’s Promise: A Natural Law Account of the American Constitution gives a smooth, integrated account of all of the major issues of constitutional theory. He promises an account of the Constitution that simultaneously fits (a) the law of the early republic, (b) the precedentially-governed law of today, and (c) the moral principles of the natural law. While I agree with Strang that the meaning expressed by the text according to its original legal conventions morally binds officeholders today, there are problems if we too-tightly integrate the three realms of moral reality, the Constitution itself, and precedent. We can sharply distinguish them based on necessity and time. Moral reality and the nature of human flourishing — i.e., the sorts of things investigated by the philosophers of Athens and their intellectual descendants — are necessary, the same in every possible world that humans might inhabit. Our Constitution, by contrast, while it is fixed and unchanging, has the nature it has only because of the historically contingent events in Philadelphia in 1787, and it remains our Constitution today only because of the contingent practices of those who claim fidelity to it. Finally, the precedentially-embodied law of today is not just contingent, but properly changes; officeholders at different times and with different roles will properly apply different evidentiary standards to different evidence. Making this three-fold distinction would promote both moral candor and constitutional fidelity. The Constitution of the Founding obviously did a very poor job of coordinating enslaved Americans’ interests in human flourishing with others’ needs. But officeholders today still swear to defend that same Constitution. Instead of an explanation of why the Constitution has always promoted human flourishing, we need the moral norm against oath-breaking. Instead of filtering precedent morally, we need a moral requirement that officeholders stay silent about the Constitution unless they know whereof they speak, i.e., with enough evidence given their particular roles and stakes.

O POVO COMO INTÉRPRETE DA CONSTITUIÇÃO: REFLEXÕES SOBRE O CONSTITUCIONALISMO POPULAR

In this paper we will analyze the work of two American authors on popular constitutionalism: Michael Serota and Tom Donnelly. Initially, we will study Serota’s notion of Interpretative Competence, which is based on the idea of ​​Constitutional Fidelity and has two dimensions: Constitutional Knowledge and Constitutional Reasoning. Next, we will examine the idea that people do not have Interpretive Competence and that Supreme Court Ministers do. The second part of the paper will deal with Tom Donnelly's agenda for making popular constitutionalism work. In particular, the People`s Veto proposal will be analyzed. The research is qualitative and employs the deductive approach method. The conclusion points out that Donnelly's and Serota's ideas are not as contradictory as they may seem, and that the democratization of constitutional decision-making does not necessarily violate the obligation of constitutional fidelity.

Polish Judiciary and the Constitutional Fidelity. „In Judges We Trust”?

Polish Judiciary and Constitutional Fidelity. „In Judges We Trust”?As the Polish government continues to strike at the very heart of the rule of law by refusing to implement, and publish, the judgments of the Constitutional Court, the issue of legal consequences of a judgment delivered, but unpublished and/or unimplemented, comes to the fore. The primary objective of the analysis is to show how disabling the Constitutional Court and constitutional capture of checks-and-balances should translate into the case law of ordinary judges. This latter aspect received only scant attention from the academia. Ordinary courts have their own promises to fulfill when faced with the all-out capture of constitutional essentials making up Polish legal order. As we move forward, these courts should be ready to take on the mantle of quasi-constitutional courts and defend the integrity of the system. Whether they are ready to perform such systemic function is a different question altogether.

A Question Perpetually Arising: Implied Powers, Capable Federalism, and the Limits of Enumerationism

The American constitutional order embodies a tension between two irreconcilable ideas. “Enumerationism” holds that federal powers are limited to those expressly enumerated in the Constitution, plus whatever implied powers are necessary and proper to execute them. What I call “capable federalism” asserts that the Constitution creates a national government fully empowered to address all national problems. Enumerationism rejects the idea that the federal government has general powers, or that it has implied powers of equal or greater dimension than those expressly listed. Capable federalism is a general power by definition, and it is fully compatible with formal recognition of implied “great” powers. Although the two theories are incompatible, our constitutional doctrine tries to harmonize them by claiming to adhere to enumerationism while evading its strictures. We find various constitutional tricks and cheats to accommodate the “structural imperative” that any federalist system must ensure that all social problems can be addressed by at least one level of government. Still, an ideological overlay of enumerationism continues to suppress any formal recognition of capable federalism.This article argues that enumerationism is an ideology far more than it is a viable constitutional theory. Lacking a compelling claim to our constitutional fidelity as a matter of text or history, enumerationism is also lacking as a principle. Its purported logical premises — that a limited grant of power requires enumeration, and that an enumeration must always be interpreted as exclusive — are both false. The inability of enumerationism to explain implied powers undermines its logical consistency. And by requiring as an axiom that there be some regulatory gap — identifiable subjects of national regulatory concern that cannot be adequately addressed by any level of government in our federal system — enumerationism imposes social costs without a countervailing justification. Not surprisingly, our constitutional practice, over the long run from ratification to the present, has been reflective of capable federalism: some way will be found to accommodate a federal power to address national legislative problems.

Constitutional Fidelity and Extra-Legal Discretion: Justifying Executive Prerogative and Disobedient Disclosure

In this article, I defend the justifiability of both concealed uses of executive prerogative as consistent with the end of self-preservation for which government is constituted by the people and its disobedient disclosure as consistent with the rational interest of the citizens of the constitutional state in non-subordination. Indeed, I argue both prerogative and disclosure are justifiable, despite the latter clearly operating at cross-purposes with the former. I also contend that disobedient disclosure aligns more closely with the justificatory conditions of executive prerogative than more traditions forms of civil disobedience. My discussion is limited to the question of justification, highlighting the normative stakes of delegitimizing either mode of extra-legal discretionary judgment by executive or disclosers respectively.

Indian Children and the Federal-Tribal Trust Relationship

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

Frederick Douglass, Citizen Interpreter

Consent-based theories of constitutional fidelity emphasize that interpreters should sharply distinguish between their own judgments of political morality and their judgments about what the Constitution requires. An instrumental approach to constitutional reasoning is held to violate this basic obligation. This piece argues that one of the most exalted citizens of constitutional theory, Frederick Douglass, advocated the instrumental approach to interpretation that the classical concept of fidelity warns against. Many constitutional theorists would be unwilling to accept the conclusion that he was a faithless interpreter. Sharing the intuition that Douglass was an outstanding constitutional citizen, I begin to develop an account of a faithful interpretive practice for citizens that can defend these apparent subversions.

Constitutional Fidelity & the Commerce Clause: A Reply to Professor Ackerman

Can the Constitution be legitimately, albeit implicitly, amended by the Supreme Court? The possibility of implicit constitutional amendment - most forcefully advocated by Professor Bruce Ackerman as transformative Supreme Court decisions - has been articulated to justify, legitimate, and entrench various radical reinterpretations of the Constitution, most notably the New Deal Court's vast expansion of the power to regulate commerce. The article concludes that such implicit constitutional amendments are theoretically illegitimate and provide strong disincentives for We the People to become politically active in order to correct flaws in the original Constitution or interpretations thereof that are deemed no longer normatively desirable. They bypass the process of amendment provided for in Article V and encourage popular political lethargy and judicial paternalism.

Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism

Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to Concept of Law, clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means convention in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense - specifically, by figuring in a shared cooperative activity (SCA) among officials. Chris Kutz, Scott Shapiro, and Jules Coleman (more recently) have adopted this model. This Article criticizes the Lewis-convention and SCA models of the rule of recognition, drawing on U.S. constitutional theory. Imagine a society of U.S. officials who are committed to the text of the 1787 Constitution in a strong way: each official would continue to accept the text as supreme law even if every other official defected to an alternative text, and no official is prepared to bargain or negotiate with the others about the supremacy of the text. The social practice among these officials is neither a Lewis-convention (since there is no alternative text to which every official would shift if every other official did), nor an SCA (since the officials have no general intention to mesh their conceptions of legal validity, and in particular have no intention to compromise with officials who deny the supremacy of the 1787 text). Therefore, under the Lewis-convention and SCA models, a hypothetical society of U.S. officials who are committed, first and foremost, to the 1787 text rather than to the community of officials, is not a full-fledged legal system. But this is deeply counterintuitive. The hypothetical society simply embodies, in a particularly pure form, an attitude of fidelity to the 1787 text that many officials and citizens currently profess. The tension between the Lewis-convention and SCA models of the rule of recognition, and constitutional fidelity, points the way to a different model of the rule of recognition: namely, that the rule of recognition is a social norm.

The Idea of a patriot queen? The monarchy, the constitution, and the iconographic order of greater Britain, 1860–1900

In the closing decades of the nineteenth century the idea of Greater Britain, of the unity of the Anglo-Saxon colonies and the ‘mother country’, became a topic of considerable interest and controversy amongst the metropolitan intellectual and political elite. This article examines the roles played by the monarchy in the debates. Queen Victoria, as both idea and institution, assumed two central functions. First, it was argued that the institution of the monarchy, stretching back over centuries, could supply an anchor of permanence and constitutional fidelity in a redesigned global polity. This would reassure critics of such schemes that their fears about fundamental transformation were unfounded; that a thread of historical continuity ran through the proposals. Secondly, Victoria – or at least an idealised representation of her – acted as the linchpin for a sense of global national identity. The prestige and admiration that she (and the institution of the monarchy itself) generated, it was contended, bound the distant peoples of her realm in close communion. Moreover, the way in which she was sometimes represented in imperial debate harked back to (while modifying) an older civic humanist language of ‘patriot kingship’.

Constitutional Fidelity and Interbranch Conflict

Constitutional Fidelity and Interbranch Conflict Mariah Zeisberg (bio) This paper considers the significance of the American Constitution's distinctive structuring of the branches for our understanding of constitutional purposes generally, and for executive prerogative as regards war powers, more specifically. I argue that constitutional theories which emphasize constraint as a primary conceptual category are inadequate, and I instead argue that constitutional fidelity starts with the effective pursuit of proper government purposes. From an examination of the political conditions supporting the operation of the three branches, I suggest that the Constitution's purposes include the establishment of a system of interbranch deliberation as a means, and the realization of a distinctive moral vision of political relationship, as an end. This moral vision of political relationship prizes independence and mutuality in the pursuit of common goals, and tolerates and even welcomes contentiousness about constitutional meaning as a distinctive moral good. Finally, I offer a few considerations on how such considerations might lead us to a reworked conception of executive prerogative as regards war powers. I Why should we understand constitutionalism in terms of proper purposes? Usually, constitutional theorists argue as if constraint is the fundamental category for understanding constitutionalism. Jon Elster tells us that constitutions can be understood primarily as devices of constraint, necessary for overcoming "the problems of passion, time-inconsistency, and efficiency."1 Giovanni Sartori understands that "constitutions are, first and above all, instruments of government which limit, restrain and allow for the control of the exercise of political power."2 John Rawls, too, understands constitutionalism as a guarantee that "certain basic political rights and liberties" will be taken "off the political agenda . . . thereby establishing clearly and firmly the rules of political contest."3 This understanding is not the same as one which emphasizes the constitution's fundamentality (or supremacy). We can accept the Constitution's supremacy without elevating constitutional constraint to political supremacy. John Marshall is perhaps the most significant jurist for developing this distinction — he contributed greatly to the development of the idea of the constitution's supremacy, yet his notion of constitutionalism was oriented, not around constraint, but around the supremacy of constitutional purposes.4 An understanding of constitutional fidelity like Marshall's, one which emphasizes purposes over constraint, is more consonant with the framers' understanding. The framers were almost obsessed with "energetic" government, government with the capacity to pursue the ends that are properly those of government.5 They understood, as we understand today, that political freedom requires more than limited government. In fact, sometimes government will have to act strongly to create the conditions for liberty.6 An understanding of constitutional fidelity which includes the effective pursuit of purposes like security, the general welfare, prosperity, human dignity, freedom, and equality is not inconsistent with the idea of constitutional constraint, but it does require us to reformulate what we mean by constraint. Instead of understanding constraint as the sine qua non of constitutional government, we can understand it as a mechanism for focusing power onto its appropriate objects. Sotirios Barber has eloquently articulated this alternative conception: he speaks of constitutional constraints as, "derivative and secondary, not fundamental; they were the conduits or channel markers of a dedicated or focused program. These channel markers helped to define the program by setting it apart from others, and in this way they negated the others."7 A government which does not observe due process guarantees, for example, will divert its power towards the persecution of innocent people — an improper purpose. The advantage of understanding constitutional government according to its purposes is that such an understanding gives us a richer standpoint from which to evaluate constitutional fidelity. In addition to evaluating whether or not government adheres to formal procedural and substantive limitations, we can evaluate how effectively government is pursuing its purposes. Among those purposes of the American Constitution, I would like to posit two not often discussed. I suggest that the institutional relationships the Constitution establishes can lead us to an appreciation for the value of interbranch deliberation [End Page 24] and towards a distinctive moral understanding of political relationship. II Although the preamble, the list of rights in the Bill of Rights, and the powers granted to government...

Constitutional Fidelity through Children's Rights

Constitutional Fidelity through Children's Rights

Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?

Two broad categories of constitutional have traditionally been invoked in the context of fashioning legal responses to emergencies. According to the Business as Usual model, ordinary legal rules continue to be strictly followed with no substantive change even in times of crisis. The law in times of war remains the same as in times of peace. Other of emergency powers may be grouped together under the general category of models of accommodation, insofar as they attempt to accommodate, within the existing normative structure, security considerations and needs. Though the ordinary system is kept intact as much as possible, some exceptional adjustments are introduced to accommodate for exigency. The article suggests that these traditional may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the legal order, at times even violating otherwise accepted constitutional principles. Such a response, if pursued in appropriate circumstances and properly applied, may strengthen rather than weaken, and result in more rather than less, long-term constitutional fidelity and commitment to the rule of law. The Extra-Legal Measures model proposed in the Article informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation and the public in the face of calamity, provided that they openly and publicly acknowledge the nature of their actions. It is then up to the people to decide, either directly or indirectly (e.g., through their elected representatives in the legislature), how to respond to such actions. The people may decide to hold the actor to the wrongfulness of her actions, demonstrating commitment to the violated principles and values. The acting official may be called to answer, and make legal and political reparations, for her actions. Alternatively, the people may act to approve, post facto, the extralegal actions of the public official. The process leading up to the ratification (or rejection) of those actions promotes deliberation after the fact, as well as establishes the individual responsibility of each member of the relevant community for the actions taken on behalf of the public during the emergency. That very process, with its uncertain outcomes, also serves an important function of slowing down any possible rush to use extralegal powers by governmental agents. By separating the issues of action and ratification, the model adds an element of uncertainty hanging over the head of the public official who needs to decide how to act. That uncertainty raises the cost of taking an extralegal course of action. The model seeks to preserve the long-term relevance of, and obedience to, legal principles, rules, and norms. While going outside the legal order may be a little wrong, it is advocated in order to facilitate the attainment of a great right, namely the preservation not only of the constitutional order, but also of its most fundamental principles and tenets. The model promotes, and is promoted by, ethics of political and popular responsibility, political morality, and candor.

Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?

Two broad categories of constitutional have traditionally been invoked in the context of fashioning legal responses to emergencies. According to the Business as Usual model, ordinary legal rules continue to be strictly followed with no substantive change even in times of crisis. The law in times of war remains the same as in times of peace. Other of emergency powers may be grouped together under the general category of models of accommodation, insofar as they attempt to accommodate, within the existing normative structure, security considerations and needs. Though the ordinary system is kept intact as much as possible, some exceptional adjustments are introduced to accommodate for exigency. The article suggests that these traditional may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the legal order, at times even violating otherwise accepted constitutional principles. Such a response, if pursued in appropriate circumstances and properly applied, may strengthen rather than weaken, and result in more rather than less, long-term constitutional fidelity and commitment to the rule of law. The Extra-Legal Measures model proposed in the Article informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation and the public in the face of calamity, provided that they openly and publicly acknowledge the nature of their actions. It is then up to the people to decide, either directly or indirectly (e.g., through their elected representatives in the legislature), how to respond to such actions. The people may decide to hold the actor to the wrongfulness of her actions, demonstrating commitment to the violated principles and values. The acting official may be called to answer, and make legal and political reparations, for her actions. Alternatively, the people may act to approve, post facto, the extralegal actions of the public official. The process leading up to the ratification (or rejection) of those actions promotes deliberation after the fact, as well as establishes the individual responsibility of each member of the relevant community for the actions taken on behalf of the public during the emergency. That very process, with its uncertain outcomes, also serves an important function of slowing down any possible rush to use extralegal powers by governmental agents. By separating the issues of action and ratification, the model adds an element of uncertainty hanging over the head of the public official who needs to decide how to act. That uncertainty raises the cost of taking an extralegal course of action. The model seeks to preserve the long-term relevance of, and obedience to, legal principles, rules, and norms. While going outside the legal order may be a little wrong, it is advocated in order to facilitate the attainment of a great right, namely the preservation not only of the constitutional order, but also of its most fundamental principles and tenets. The model promotes, and is promoted by, ethics of political and popular responsibility, political morality, and candor.

Judges As Advicegivers

Since Alexander Bickel, scholars have understood the Supreme Court to have a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. Professor Katyal contends that the Court wields a fourth power: advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and this article seeks to provide a normative justification for the practice. Professor Katyal breaks down advicegiving into several categories and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for the coordinate branches while also serving the goals offederalism, enhancing political accountability, and encouraging judicial candor. In particular, Professor Katyal explains how advicegiving can become an alternative to aggressive forms of judicial review while simultaneously maintaining constitutional fidelity.