Constitutional Project Research Articles

Displacing the Constitution: Modernity, Sovereignty and Crisis in Interwar Romania

Abstract By a legal historical analysis of the context of the interwar period, it seeks to uncover the ideological infrastructure subjacent to the constitutional project of the interwar period, placing Romanian constitutional thought and practice in a proper international context. By tracing the changes within the practice of emergency and the shifting status of sovereign power within the years following the institution of the Constitution of 1923, it moves towards examining the affirmation of authoritarian features of unbound state power in the Constitution of 1938, the first dictatorial constitution in Romanian modernity.

Mikhail M. Speransky and his Constitutional Project

Mikhail M. Speransky was a versatile person, who knew law, politics, philosophy, mathematics, physics, eloquence. Even Napoleon was impressed by the sharpness of the mind of the Russian political figure. The statesman clearly understood the needs of the society of the 19th century, realized what and how it was necessary to bring the Russian Empire into the state system in order to improve it. Indeed, a detailed analysis of the constitutional project of the great reformer is of great importance for the history of Russia. Thus, research on this topic remains relevant now. Mikhail M. Speransky is a key figure who found himself at the junction of two eternally opposing movements of socio-political thought, namely: conservatism and liberalism. The reformer was a supporter of liberal transformations, but for their successful implementation it was necessary to have a society, albeit conservative, but internally ready for new trends in politics, state and law. Why did a statesman with radical views fail to fully implement his ambitious plans? Is his large-scale plan only a ghostly illusion? The paper examines the main directions of the liberal policy of Mikhail M. Speransky in the process of creating and trying to implement a constitutional project, analyzes objective and subjective socio-historical factors that influenced the possibility of the actual implementation of the ideas of an astute and wise state and legal figure. Special attention is also paid to the significance of the personality of Mikhail Mikhailovich — a reformer with radical views — in the history of our country. Undoubtedly, Mikhail M. Speransky formulated a large number of liberal postulates governing the creation of a rule of law. Echoes of some of his ideas can be seen in modern concepts and principles implemented in Russia.

THE FAILURE OF EUROPEAN CONSTITUTION

The debate about the failure of the European Constitution has tended to polarize many scholars regarding the reasons why the European Constitution failed. However, having looked backwards into history in order to receive a more general overview a remaining puzzle is still there. In constitutional scholarship many efforts have been spent in trying to detach the concept of constitution from the nation-state framework and put it into a transnational concept even though in legal and political rhetoric the constitution appears to be linked with the nation-state only. The process in establishing a constitution for Europe encountered a debacle when the Netherlands and France refused the proposal. Scholars have debated this issue more than enough but still many questions remain unanswered regarding the failure of the European Constitution. From the documents and articles consulted no single narrative fully explains the failure of the constitutional project that’s why the paper is striving to bridge this gap and give another perspective in this direction, even though there is an arsenal of reasons that explains the failure.

The Authoritarian Nature of Common Good Constitutionalism

Abstract How are we to evaluate the project of common good constitutionalism? This new movement, which dismisses positivism and liberalism, progressivism and originalism, aims to overturn the entire canon of modern political and constitutional theory. In its place, it aims to restore a classical tradition of natural law jurisprudence, which is said to have been lost over the last century of constitutional law and practice. In so doing it uses one of liberalism’s own juristic heroes, Ronald Dworkin, in order to free conservatism from the tethers of fidelity to constitutional text and the principle of popular sovereignty underwriting it. Common good constitutionalism’s intervention in the constitutional culture wars of the present is authoritarian not because of its opposition to liberalism, but because of its steadfast refusal of any link between constitutional authority and democracy.

The Formation of a Constitutional Framework for Civil Society: Constitutional Projects of the 1990s in the Context of the 2020 Constitutional Reform

The Formation of a Constitutional Framework for Civil Society: Constitutional Projects of the 1990s in the Context of the 2020 Constitutional Reform

Giving individual remedies in social rights litigation their due

As courts enforce socio-economic rights, reliance on individualized relief continues to be controversial. These remedies risk rewarding individuals for their ‘sharp elbows’, while ignoring others who suffer from similar deprivations. They can undermine the integrity of priority-setting schemes for distributing resources, and they can encourage inefficient public spending. Worse still, these orders can have the effect of starving social programs which support the vulnerable. More generally, this form of relief can neglect the need for structural change, and may fail to promote truly transformative constitutionalism. In the face of these criticisms, this article attempts to give individual remedies in socio-economic rights litigation their due. It develops a framework that identifies three spaces in which individualized relief is warranted. First, individual remedies can compensate for implementation gaps in public policy and administrative disfunction. Second, weak-form engagement orders can promote greater rights awareness and special attention for individuals experiencing poverty. Third, individual remedies can provide urgent relief from unreasonable priority-setting schemes. These remedial paths challenge conventional accounts of the judicial role by positioning judges to be more sensitive to their orders’ distributive implications. The article then theorizes the individual remedy’s contributions to the broader project of transformative constitutionalism. It stresses that when coupled with a democratization of legal procedure, individual orders can offer more timely and effective relief than complex, structural remedies. Individualized relief can also catalyze broader policy and administrative reform. Last, individual remedies can set the stage for structural remedies that would otherwise prove too daunting or provocative.

Has the owl flown with regard to ‘the constitutional theory of political liberalism’?

These are difficult times for the project of ‘political liberalism’. Frank Michelman is one of the most distinguished advocates for liberal constitutionalism, and one can only wonder if the time has past – that is, if the ‘owl of Minerva’ has perhaps flown – with regard to a constitutional project identified very much with the mid-20th century.

Институт публичных манифестаций как форма делиберативной демократии

The article discusses the institution of public manifestations in the context of the development of forms of deliberative democracy. Public demonstrations are considered not only as a form of protest civic activity, but also as a way to involve citizens in the process of changing the constitution. There is a lack of development of the potential of rallies and peaceful assemblies for the purpose of increasing civil participation in the initiation and discussion of constitutional projects. It is proposed to impose on the authorities the obligation to maintain open statistics of public demonstrations related to civil constitutional initiatives, as well as the introduction of a simplified procedure for holding meetings aimed at discussing constitutional changes.

Militant Democracy Unmoored? The Limits of Constitutional Analogy in International Law

Abstract As constitutional democracies are faced with authoritarianism and other anti-constitutionalist threats, international law is seeing its own challenge from the increasing influence of authoritarian states. Yet, departing from the recent tendency to model the international legal order after constitutional governance, international lawyers seem to show little interest in the concept of militant democracy, while the latter lies at the centre of current debates surrounding constitutional self-defence. This article aims to bring to light the current limits of constitutional analogy in international law through an investigation into the discrepancy between constitutional and international lawyers in responding to authoritarian co-optation. A three-pronged argument is submitted. First, in contrast to other appeals for constitutional self-defence, the concept of militant democracy is contentious where it stands in tension with the constitutional ethos. Second, while militant democracy as a constitutional concept presupposes a democratic and normative version of constitutional ordering, the absence of militant democracy on the international plane betrays the non-democratic, albeit representative, character of the international legal order. Third, attempts to internationalize the concept of militant democracy should be rejected as an international version of militant democracy would only portend an (un)holy alliance of militant democracies and exacerbate the political division in international society. It is suggested that, from out of a realignment of international law with the constitutional project of progress, a new constitutional analogy may emerge, giving fresh impetus to the realization of international law’s universal liberating promise.

The role of the Act of 5 November 1916 in starting the process of rebuilding Polish statehood

The following text is devoted to the issues of the fate of Polish lands being decided during World War I. Above all it discusses the Act of 5 November 1916 issued by two of the partitioning powers – the Second German Reich and Austria-Hungary – and assesses its role in the future revival of Polish statehood. This legal act led to the establishing of semi-sovereign central Polish administration bodies, which prepared a draft constitution for the future state (monarchist), a draft electoral law for the Sejm, and took many steps to establish local Polish authorities, the judiciary, and the education system. The authors analyse the establishment of the two main central bodies under the auspices of Germany and Austria-Hungary (the Provisional Council of State, and the Regency Council), describe the monarchist project of the Polish constitution created thanks to the Provisional Council of State, and the electoral law designed at that time. They also question to what extent the acts of 5 November can be associated with the concept of “Mitteleuropa” – the creation of an economic and political union in Central and Eastern Europe of states that were to function under strict German control. This concept, created in the second half of the 19th century, was redefined during World War I. The historical-legal method was used in work on this article, supplemented with the dogmatic-legal and comparative methods.

(Political) political liberalism and the constitutional project

Abstract This review essay follows Alessandro Ferrara and Frank Michelman’s dialogic journey into the legitimation-by-constitution idea, which they submit as the institutional expression of political liberalism in Legitimation by Constitution: A Dialogue on Political Liberalism, to illustrate the challenges for contemporary philosophy of political liberalism in its transposition to the constitutional project. It argues that Ferrara and Michelman’s liberal endeavor to answer the fundamental questions surrounding political liberalism rests on a normative conception of identity, which eventually leads them to a dilemma: the project of constitutional democracy they defend and justify is sustained by a liberal ethos, while it is tasked to accommodate those who do not value the liberal form of life. Instead of choosing between the project of constitutional democracy and their liberal soul, Ferrara and Michelman eventually offer a thin constitutional account of political liberalism resembling the international legal order amidst the retrenchment of the liberal ethos. It contends that what liberal democracies need from political liberalism in battling antiliberal forces is not more political philosophy but rather something akin to what Jeremy Waldron calls “political political theory.” It is suggested that political liberalism take a political turn to confront antiliberal forces with an enriched rather than diluted constitutional project.

When Should Courts Invalidate Constitutional Amendments?

Abstract Courts having the ability to invalidate procedurally correct constitutional amendments for violating core democratic or constitutional values is a growing practice in global constitutionalism. However, this power is generally exercised by courts on a whim and very often without any textual basis. Such actions raise serious legitimacy concerns and can undermine efforts towards regular constitutional change. In extreme cases, this power has been wielded by courts in ways that contribute to democratic backsliding rather than its prevention. Few solutions to police this power of courts and prevent net negatives exist. These solutions either fall short of addressing the challenges of courts invalidating procedurally correct constitutional amendments or rely heavily on judges’ restraint and good faith, qualities which we struggle to see in many jurisdictions where courts exercise this power. In turn, this article outlines a template for courts to use when evaluating the validity of procedurally correct constitutional amendments. This article’s suggested template hopes to prevent courts from misusing their powers while still leaving sufficient room for them to act to prevent threats to a polity’s democratic and/or constitutional project. It aims to do so by reducing the subjective discretion available to judges relative to other available templates.

Конституционное регулирование избирательной системы в контексте обеспечения стабильности избирательного законодательства

The article deals with the problem of the gap in the 1993 Constitution of Russia in terms of regulating the electoral system in its broad sense. It is noted that the introduction of the vast majority of legal norms to the level of laws and by-laws generates instability of electoral legislation and negatively affects the state of the Russian legal system. Based on the results of the analysis of the Constitutions of foreign states and domestic scientific works and political constitutional projects, proposals are made on the prospects of constitutional regulation of the electoral system of Russia.

Measuring constitutional preferences: A new method for analyzing public consultation data

Public consultation has become an indispensable part of constitutional design, yet the voluminous, narrative data produced are often impractical to analyze. There are also few, if any, standards for such analysis. Using a comprehensive reference ontology from the Comparative Constitutions Project (CCP), we develop a new methodology to identify constitutional topics of most concern to citizens and compare these to topics in constitutions globally. We analyze data from Chile’s 2016 public consultations—an ambitious process that produced nearly 265,000 narrative responses and launched the constitutional reform process that remains underway today. We leverage advances in natural language processing, in particular sentence-level semantic similarity technology, to classify consultation responses with respect to constitutional topics. Our methodology has potential for advocates, drafters, and researchers seeking to analyze public consultation data that too often go unexamined.

Sobre fracaso constitucional, constitucionalismo transformador y utopismoOn constitutional failure, Transformative Constitutionalism, and Utopianism

Abstract In this brief epilogue, we reflect on the articles in this symposium to ask two questions that are particularly important to transformative constitutionalism. First, what is constitutional failure? While this symposium focuses on constitution-making episodes that never result in a final text, projects might be seen as failures even if they formally go into effect, because they fail to produce on the ground change. Transformative constitutional projects often pay more attention to the articulation of rights than the pathways through which these rights are implemented. Such a text can fall prey to structural utopian constitutionalism, where there is no path to implement ambitious programmatic content. Second, we ask: what causes constitutional failure? The essays in this symposium highlight essentially political reasons, particularly the failure to build sufficient political support from parties and other stakeholders. Constitution-making without such support from political insiders, such as the 2022 Chilean draft or the Icelandic draft, risks falling into sociological utopian constitutionalism and may fail to launch. Examining the failures in this symposium, particularly the overwhelming loss of the 2022 Chilean draft, may help avoid situations where transformation slides into utopianism.

El proceso constituyente español de 1873: origen y fracaso de la República FederalThe Spanish constituent process of 1873: origin and failure of the Federal Republic

Abstract The Spanish constitutional project of 1873 was intended to lay the foundations of the First Spanish Republic, whose proclamation took place in the context of the abdication of King Amadeo I to the throne. In this article I approach the analysis of the constituent process from a double perspective. On the one hand, that of the methodological rule of the possibility principle, which requires the project having a minimum probability of success in order to contribute to the theory of constituent processes. On the other hand, that of theory building process tracing, which allows us to causally reconstruct the failure and identify the intervening factors. I argue that, although the particular seriousness of the political crisis that existed in Spain at the beginning of the constituent process did not necessarily condemn it to failure, as the process progressed, the worsening of these circumstances, together with the novel but also divisive nature of the project, ended up dynamiting the initial consensus.

National State and constitution in the process of Independence

The formation of the National State and its constitutional framework are contextualized within the “restoration period” of the rule of King D.João in Brazil and of the independence process. There were several constitutional projects, and the victorious political-juridical model introduced by the Constitution of 1824 assigned a conservative and stabilizing role to the “Moderating Power”, or “Royal Power”, especially through the Council of State and the Senate. This solution catered to the economically influential sectors of society, which sought a political-legal option equidistant both from absolute monarchy, associated with despotism, and from a republic, associated with Jacobin radicalism.

Populist Constitutionalism and the Judicial Overhaul in Israel

AbstractIn the last year Israel has been going through its most severe constitutional crisis in its history. The newly elected right-wing government has initiated a judicial overhaul that would limit the authority of the judiciary and grant the executive almost absolute powers. In response, the country has witnessed unprecedented civil protestations and opposition from nearly all segments of civil society, academia and economic sectors. In this article we argue that the judicial overhaul must be analysed as a populist constitutional project. We also explain that compared with other systems, Israeli democracy is especially vulnerable to populism, because of its unique institutional design factors coupled with social factors. Only with understanding these factors can one grasp the risks that the judicial overhaul poses to Israeli democracy.

Utopian constitutionalism in Chile

AbstractIn this article, we argue that the 2022 Chilean draft Constitution helps to articulate the distinction between a transformative constitutional project and a utopian one. Whereas a transformative project lays down markers for social change that will take time to achieve, a utopian project sets out goals that are unlikely to be achieved within any reasonable timeframe. Utopianism is a product of two relationships. The first is the internal relationship between the transformative goals laid out in a constitution and the institutional pathways through which changes will occur. The second is the external relationship between the goals in the text and the views and support of key groups. In Chile, both relationships were problematic. First, the Convention adopted a draft that was heavy on ambitious programmatic content but lacked a clear vision of how to implement it. Second, the Convention produced a draft that was supported by the ephemeral civil society groups galvanized by the 2019 protests but divorced from the vision of Chile’s parties and public opinion. Some of this was a product of the peculiar electoral context in which the Convention acted, which has already been corrected. But some of it reflects deeper tensions within transformative constitutionalism.

REPRESENTATIVE AND ILLUMINIST CONSTITUTIONAL JURISDICTION: AN OUTLOOK BASED ON THE HERMENEUTICAL CRITICISM OF LAW

The present study analyzed the representative and illuminist role of the Constitutional Courts (Barroso) under the lens of the Hermeneutic Criticism of Law (Streck). The objective was to understand, based on these theoretical matrices, what to expect from Brazilian constitutional jurisdiction to adequately meet the constitutional project inaugurated in 1988. An approach was made to the representative and illuminist role of the Constitutional Courts and the Hermeneutic Criticism of Law (HCL) and, at the end, an analysis of the representative and illuminist role of the Constitutional Courts based on the HCL. It was noted that HCL offers elements that are best suited to the democratic implementation of the constitutional project inaugurated in 1988.