Constitutional Constraints Research Articles

Was Brexit a Form of Secession?

AbstractAs a form of legal separation taking place within a quasi‐federal framework, Brexit displayed important conceptual similarities with secession, in that it was predicated upon notions of collective identity and aspirations of renewed self‐government. This article examines the interrelationship between Brexit, secession as a legal concept, and secessionism as a political phenomenon. It advances two main arguments: at a first stage, it highlights that while Brexit ideologically aligns with secessionism, it could not have met any sustained international law definition of secession itself. However, the constitutional constraint to the European Union's formal status as an association of states (Staatenverbund) as opposed to a federation (Staatsverband) has rendered its withdrawal provision (Article 50 of the Treaty on European Union (TEU)) unduly impervious to the important practical parallels between the Brexit process and decisional, that is, negotiated, forms of secession. The article goes on to argue that an active recognition of aspects of decisional secession within the EU constitutional framework could have allowed for a more complex and dialogical resolution of Brexit than the conditions set up by the unilateral withdrawal clause allowed.

Rethinking prevention as a reactive force to contain dangerous classes

The pervasiveness of preventive rationality, which is especially evident in populations caught in the prison-neighbourhood circuit, constitutes a challenging field for anthropological theory because it allows us to rethink the problem of hegemony in the context of the crises of capitalism. Drawing on research conducted in Chile amongst practitioners of crime prevention programmes and prisoners’ families targeted by such initiatives, in this paper, we explore crime prevention as a political concept whose effects are inseparable from the maintenance of class and gender disparities. In conceptualising how petty crime prevention has become a predominant technology of classifying, policing and managing low-income populations, we take Foucault's notion of illegalism – as distinct from illegality – and extend it to dispossessed groups affected by dramatic levels of economic inequality and structural violence. We discuss preventive rationality in relation to the contradictions engendered by an authoritarian form of capitalism protected by constitutional constraints inherited from the Pinochet dictatorship. By connecting the conceptualisation of petty crime prevention to the ongoing contradictions of the society in which we live, we seek to sharpen attention to the ways in which the neoliberal hegemony attempts to contain its decline.

An Organizational Coase Theorem: Constitutional Constraints as Increasing in Exit Costs

An Organizational Coase Theorem: Constitutional Constraints as Increasing in Exit Costs

Contested, violated but persistent: presidential term limits in Latin America and sub-saharan Africa

ABSTRACT Presidential term limits have been a crucial institutional feature of the third wave of democratization. They are meant to safeguard democracy by promoting alternation in office and preventing the personalization of power. However, since the 1990s term limits have been subject to frequent contestation by incumbents. This process has often been considered a sign of autocratization because it involves the weakening of other constitutional constraints, such as courts and legislatures. Latin America and sub-Saharan Africa are focal points of these trends, despite their different histories of presidentialism and diverging types of term-limit rules. Term-limit contestations have attracted the attention of scholars working with a global perspective as well as with a regional or country-specific one too. In this article, we argue that bringing together the regional scholarship on Latin America and sub-Saharan Africa can generate new both empirical and theoretical insights. We further present our findings on institutionalization, the power of precedence, incumbent-centred strategies and approaches to protect presidential term limits. We also show that despite frequent reforms, term-limit rules have persisted until today in the majority of constitutions found in the two regions.

Unraveling Japan’s aircraft carrier puzzle: Leveraging carriers’ symbolic value

ABSTRACT Japan’s decision to convert two helicopter-carrying ships into fixed-wing aircraft carriers has generated criticism on two fronts. Military analysts question the military sense of carriers in the age of long-range precision missiles, while other domestic critics decry the move as a flagrant breach of Japan’s constitutional constraints on possessing senryoku (war potential) and one likely to provoke Japan’s neighbors, most notably China. Against this backdrop of criticism, why did the administration of Prime Minister Shinzo Abe take Japan back into the difficult business of carriers? This article argues that contrary to stated criticism, the carrier conversion program does provide Tokyo with tangible military benefits but these on their own are insufficient to explain the decision. Instead, we show the move is motivated in part by the desire to leverage carriers’ symbolic value for political ends.

SPRING WAS REBELLIOUS, BUT IT’S ALL OVER NOW – PUBLIC ART, POLITICS AND THE LAW IN POST-APARTHEID SOUTH AFRICA – PART TWO

As pointed out in part one of this article, politics, art and the law make uncomfortable bedfellows, and the commissioning of public art by public bodies often gives rise to bitter controversy. Part one traced a recent ongoing public spat in the Durban area concerning a sculpture of three large elephants by the acclaimed international artist, Andries Botha. Using that case as a lens, part one attempted to situate the central issues surrounding the commissioning of public art by public bodies in post-apartheid South Africa within a broad historical, political and constitutional framework. Part two of this article examines certain of the more specific and salient legal issues which the authors believe South African courts dealing with matters of this kind will need to address. The possible legal rights of both the South African public when confronted with undue state interference in matters of public art, as well as those of individual artists involved in such matters, are discussed. In relation to the rights of the South African public, the constitutionality of the commissioning process itself (that is, potential constitutional constraint on the actions of public officials who commission public works of art), as well as the potential right of the general public to the preservation of works of art of “recognized stature”, is discussed. As for the rights ofindividual South African artists, a number of areas of the law – constitutional, contractual and statutory – as possible sources for such rights are examined. In particular, the “moral rights” of South African artists, protected in terms of statute, are analysed and discussed in detail. The authors conclude that the funding and commissioning of public art by public bodies in South Africa should be arms-length, and that artists should be maximally free to determine the content of their creative expression. Furthermore, public art should be as diverse as possible within South Africa’s constitutional democracy, reflective of the beautiful diversity of the country’s people. Direct political interference in matters of public art should be strenuously avoided.

Fragile democracies and constitutional crises: a laboratory for studying the role of constitutional constraints

Fragile democracies and constitutional crises: a laboratory for studying the role of constitutional constraints

Fragile democracies and constitutional crises: a laboratory for studying the role of constitutional constraints

Fragile democracies and constitutional crises: a laboratory for studying the role of constitutional constraints

Parliamentary Intention: Deciphering Its Role in Statutory Interpretation in the Australian Constitutional Context

Abstract Parliamentary intention is a central aspect of statutory interpretation despite the many questions that exist concerning its normative role and desirability. In Lacey v. Attorney-General (Qld) and Zheng v. Cai, the High Court of Australia sought to diminish the role of objective parliamentary intention in statutory interpretation by alluding to a need for interpretive principles to be based on an understanding of the broader constitutional framework. This article argues that parliamentary intention has an important role to play within the modern statutory interpretation approach as adopted in Australia. Particularly, it is argued that an over-reliance upon statutory interpretation presumptions as a proxy for interpreting the legal meaning of statutes as opposed to an inquiry to discern parliamentary intention as informed by text, context, and purpose, leads to questionable interpretive results. Parliamentary intention is also consistent with the broader constitutional constraints as alluded by the High Court with respect to constitutional values such as the separation of powers between the judicial and legislative branch, and statutes being a product of an exercise of legislative power by democratically elected members of Parliament.

Constitutional Judicial Review and International Obligations of Criminalization

Abstract The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.

Bending and Buckling Analysis of Functionally Graded Euler–Bernoulli Beam Using Stress-Driven Nonlocal Integral Model with Bi-Helmholtz Kernel

Static bending and elastic buckling of Euler–Bernoulli beam made of functionally graded (FG) materials along thickness direction is studied theoretically using stress-driven integral model with bi-Helmholtz kernel, where the relation between nonlocal stress and strain is expressed as Fredholm type integral equation of the first kind. The differential governing equation and corresponding boundary conditions are derived with the principle of minimum potential energy. Several nominal variables are introduced to simplify differential governing equation, integral constitutive equation and boundary conditions. Laplace transform technique is applied directly to solve integro-differential equations, and the nominal bending deflection and moment are expressed with six unknown constants. The explicit expression for nominal deflection for static bending and nonlinear characteristic equation for the bucking load can be determined with two constitutive constraints and four boundary conditions. The results from this study are validated with those from the existing literature when two nonlocal parameters have same value. The influence of nonlocal parameters on the bending deflection and buckling loads for Euler–Bernoulli beam is investigated numerically. A consistent toughening effect is obtained for stress-driven nonlocal integral model with bi-Helmholtz kernel.

Elastic buckling and free vibration analysis of functionally graded Timoshenko beam with nonlocal strain gradient integral model

In this work, nonlocal strain gradient integral model is applied to study the elastic buckling and free vibration response of functionally graded (FG) Timoshenko beam which is made of two constituents varying along thickness direction. The differential governing equations and corresponding boundary conditions are derived via the Hamilton's principle, and the relations between nonlocal stresses and strains are expressed as integral equations. The Laplace transform technique is applied to solve directly the integro-differential equations, and the explicit expression for bending deflections and moments, as well as cross-sectional rotation and shear force is expressed with eight unknown constants. The nonlinear characteristic equations to determine the characteristic buckling load and vibration frequency are derived explicitly in consideration of corresponding boundary conditions and constitutive constraints. The buckling load and vibration frequency from present model are validated against to the existed results in literature. Consistent softening and toughening responses with respect to length-scale parameters can be obtained.

The rule of law and the role of courts

AbstractWhat role do courts play in advancing or upholding the political ideal that we call ‘the rule of law’? Does the rule of law require that courts should have authority over all other branches of government, including the legislature? And does it impose constraints on the sort of reasoning and decision-making that courts engage in? This article explores an array of possible answers to these questions, and considers the possibility that the ascendancy of courts in a constitution may represent a form of judicial supremacy that looks remarkably like the uncontrolled rule of men, which the rule of law is supposed to prevent. To preclude that possibility, it is particularly important for courts to recognize that their authority is limited in scope and that they should not be guided by any overall political program other than the program of seeing that constitutional constraints on government are upheld.

Securing Possession of the Home in the COVID-19 Context: The Irish Experience

The COVID-19 crisis has prompted reflection and at times radical legislative action in a range of jurisdictions to help individuals to retain possession of their homes despite the economic challenges created by the crisis. Long-term lock-downs in the interests of public health have created the need to minimise the movement of people and have resulted in significant loss of income, prompting legislatures to enact reforms to avoid evictions that had previously been perceived as ‘off the table’ due to their impact on property rights. The legal and political parameters for balancing the rights of landlords and tenants appear to have been re-drawn (at least temporarily) by the public health crisis. This draft chapter analyses the Irish legislative response to the impact of COVID-19 on tenants in light of these themes, with a particular focus on the interaction between legislation and constitutional constraints in this context, and on the impact of the COVID-19 crisis on political understandings of those constraints.

Militant constitutionalism: a promising concept to make constitutional backsliding less likely?

Constitutional democracy is in decline and many would-be autocrats try to transgress constitutional constraints. Here, we introduce the concept of militant constitutionalism, which suggests a number of constitutional rules that could make constitutions more resilient to attempts to undermine them. A first empirical evaluation, however, can link only few constitutional paths to enhanced constitutional resilience.

RegTech and Predictive Lawmaking: Closing the RegLag Between Prospective Regulated Activity and Regulation

Regulation chronically suffers significant delay starting at the detectable initiation of a “regulable activity” and culminating at effective regulatory response. Regulator reaction is impeded by various obstacles: (i) confusion in optimal level, form and choice of regulatory agency, (ii) political resistance to creating new regulatory agencies, (iii) lack of statutory authorization to address particular novel problems, (iv) jurisdictional competition among regulators, (v) Congressional disinclination to regulate given political conditions, and (vi) a lack of expertise, both substantive and procedural, to deploy successful counter-measures. Delay is rooted in several stubborn institutions, including libertarian ideals permeating both the U.S. legal system and the polity, constitutional constraints on exercise of governmental powers, chronic resource constraints including underfunding, and agency technical incapacities. Therefore, regulatory prospecting to identify regulable activity often lags the suspicion of future regulable activity or its first discernable appearance. This Article develops the regulatory lag theory (RegLag), argues that regulatory technologies (RegTech), including those from the blockchain technology space, can help narrow the RegLag gap, and proposes programs to improve regulatory agency clairvoyance to more aggressively adapt to changing regulable activities, such as by using promising anticipatory approaches.

Saving Cities or Exploiting Creditors?: State Diversion of Municipal Assets

States that seek to resolve fiscal distress within their political subdivisions face both political and economic pressures to balance residents’ and creditors’ interests. States have occasionally engaged in strategies that subordinate the rights of creditors, frequently by removing from debtor municipalities assets on which creditors may have relied for payment. Constitutional constraints, and the Contracts Clause in particular, created a bulwark against favoritism that arguably exploited creditors through the diversion of assets in the 19th Century. In those cases, states appeared to use asset diversion to impose a holdup “compromise” on creditors. More recently, states have adopted strategies that also divert assets away from creditors. Although the initial magnitude of the diversion differs from that in the earlier cases, the ultimate effect cannot be known at the time the strategy is implemented. Thus, the more recent strategies potentially have effects similar to those that caused earlier courts to invalidate the state’s action. Nevertheless, the more recent strategies appear to be deployed to provide distressed cities with needed capital to finance the services they were created to provide rather than to limit creditor recoveries after default. The inevitable difficulty of predicting the long-term consequences of current diversion of revenues complicates the ability to distinguish contemporary from 19th Century versions of the strategy. But history suggests that judicial reactions to state-approved asset stripping depend on the court’s conception of what the state was attempting to accomplish more than on a desire to achieve doctrinal consistency or coherence.

The Child’s Rights Forgotten, Again: Reframing Fulton v. City of Philadelphia

In early November, the Supreme Court heard argument in Fulton v. City of Philadelphia, a case with profound implications for religious exercise, LGBTQ rights, and child welfare. The last of these has, wrongly, become subordinated to the other two in this litigation. This Article explains why the case has been improperly framed as a contest between two sets of adult rights. The only constitutional constraint on the state in connection with placement of children in foster care, I argue, is the Fourteenth Amendment right of children against being taken into state custody except insofar as the state does so to protect and promote the children’s wellbeing. This is because in the child protection system, the state acts in a parens patriae role, not a police-power role. Accordingly, though Catholic Social Services is right on the facts, and though the Philadelphia Department of Human Services was wrong to terminate CSS’s contract to provide foster care services, the Court should dismiss CSS’s First Amendment claim as simply impertinent. CSS should instead assert third-party or next-friend standing to sue on behalf of children taken into DHS custody, for an injunction against exclusion of CSS from the foster-care system because that is bad for children.

Liberty, Security, and Accountability: The Rise and Fall of Illiberal Democracies

We study a model of the rise and fall of illiberal democracies. Voters value both liberty and economic security. In times of crisis, voters may prefer to elect an illiberal government that, by violating constitutional constraints, offers greater economic security but less liberty. However, violating these constraints allows the government to manipulate information, in turn reducing electoral accountability. We show how elements of liberal constitutions induce voters to elect illiberal governments that remain in power for inefficiently long—including forever. We derive insights into what makes constitutions stable against the rise of illiberal governments. We extend the model to allow for illiberal governments to overcome checks and balances and become autocracies. We show that stronger checks and balances are a double-edged sword: they slow down autocratization but may make it more likely. We discuss the empirical relevance of our theoretical framework and its connection to real world examples.

Closing the RegTech Lag Between Prospective Regulated Activity and Regulation

Regulation chronically suffers significant delay starting at the detectable initiation of a “regulable activity” and culminating at effective regulatory response. Regulator reaction is impeded by various impediments: (i) confusion in optimal level, form and choice of regulatory agency, (ii) political resistance to creating new regulatory agencies, (iii) lack of statutory authorization to address particular novel problems, (iv) jurisdictional competition among regulators, (v) Congressional disinclination to regulate given political conditions, and (vi) a lack of expertise, both substantive and procedurally, to deploy successful counter-measures. Delay is rooted in several stubborn institutions, including libertarian ideals permeating both the U.S. legal system and the polity, constitutional constraints on exercise of governmental powers, chronic resource constraints including underfunding, and agency technical incapacities. Therefore, regulatory prospecting to identify regulable activity often lags the suspicion of future regulable activity or its first discernable appearance. This article develops the regulatory lag theory (RegLag), reviews regulatory technologies (RegTech) that show promise in narrowing the RegLag gap, and proposes programs to improve regulatory agency clairvoyance to more aggressively adapt to changing regulable activities, such as by using anticipatory approaches that show promise to narrow RegLag delays.