Professor Of Constitutional Law Research Articles

Five Republics and One Tradition: A History of Constitutionalism in Chile, 1810–2020

The rapid progression of Chilean politics over the last few years has been astonishing to behold. It started with an outbreak of mass protest in October 2019. That outbreak, or estallido, led to a national referendum in October 2020 to approve the writing of a new constitution and the election in May 2021 of the constituents charged with writing that new constitution. The year ended with a hard-fought presidential election that made a former leader of the student movement the country's youngest chief executive. Given the boldness with which Chileans are now moving to change the basic rules of their republic, Pablo Ruiz-Tagle's history of Chilean constitutionalism comes at a welcome moment.Ruiz-Tagle is well positioned to offer such a study. As a practicing attorney, professor of constitutional law, and dean of the University of Chile's School of Law, he has been involved in the country's constitutional debates for three decades. Five Republics and One Tradition is a translation of his book Cinco repúblicas y una tradición: Constitucionalismo chileno comparado, published in 2016 by LOM Ediciones in Santiago. The translator has done an adequate job of sorting out the author's extensive use of legal terminology, although the reader will struggle at times with some awkward phrasing in the text. Sadly, the English translation does not bring readers up to speed on developments since the October 2019 estallido. It does, however, provide insightful commentary on Chile's four main constitutions, those of 1828, 1833, 1925, and 1980.The book presents a complex legal, political, and historical argument about Chile's tradition of “republican constitutionalism” (p. 14). One part of that argument has to do with the existence of the five republics. Borrowing from French historians, Ruiz-Tagle sets up the book as a series of chapters dealing with each of Chile's five historical republics, which he describes as independent (1810–30), authoritarian (1830–70), liberal (1870–1924), democratic (1932–73), and neoliberal (1990–present). Within that historical framework one finds two notable gaps in the timeline—one from 1924 to 1932, a period of political turmoil, military intervention, and progressive reform; and one from 1973 to 1990, the period of General Augusto Pinochet's dictatorship.This part of the argument is mostly convincing and enlightening. Each chapter is rooted in the author's deep knowledge of constitutional scholarship in Chile and the United States (the author, a Yale Law School graduate, makes several references to the Founding Fathers as well as US constitutional law scholar Bruce Ackerman). Historically speaking, the chapters are thin on content. On the one hand, the author displays a strong grasp of the classic historiography on Chilean politics; on the other hand, the book does not reflect more recent thinking by historians in Chile and elsewhere about the relationships between constitutions, elections, and popular politics.In terms of the evolution of Chile's constitutional legal doctrines, however, the chapters are rich. The author's explication of the changing conception of property law is perceptive, especially his emphasis on the importance of the concept of the “social function of property” embedded in the 1925 constitution, which opened the door to the land reforms of the 1960s and industrial expropriations of the 1970s (p. 120). Another important concept in Ruiz-Tagle's view is that of “constituent power,” by which he means the power of the majority of citizens to have its will carried out under the rule of law (p. 264). The author deftly explains that, under the Pinochet dictatorship, the military junta claimed constituent power for itself and used it to legitimate the enactment of the 1980 constitution. The chapter on the “Fifth Republic,” or “Neoliberal Republic,” is by far the most detailed, offering a strong critique of its “presidentialism” as well as an extensive analysis of its “doctrines regarding the right to property” (pp. 160–61, 217–38).Unfortunately, the other main part of Ruiz-Tagle's argument is unconvincing—namely, his insistence on the singularity of the republican constitutional tradition in Chile. Whereas the book's title posits the existence of “one tradition” in Chilean constitutionalism, various passages within the book acknowledge the coexistence of a powerful “anti-republican” tradition, one that can be seen as parallel to the liberal-republican tradition that Ruiz-Tagle so clearly embraces (pp. 16–19). The author thus casts the dictatorships of the twentieth century as violent disruptions of that “one tradition,” but in so doing he analytically disconnects them from the antirepublican forces that were present in all five republics, most notably the “Authoritarian Republic.” As the national elections held since the end of the Pinochet dictatorship demonstrate (including the most recent presidential election), a solid 40 percent of the Chilean electorate remains sympathetic to a law-and-order message that hearkens back to the days of Diego Portales. In other words, the “one tradition” posited in the book's title may not reflect the more complicated reality of Chilean political history.

Pro-Constitutional Representation and Legislated Rights: Comment on Legislated Rights – Securing Human Rights Through Legislation

Pro-Constitutional Representation and Legislated Rights: Comment on Legislated Rights – Securing Human Rights Through Legislation Vicki C Jackson Vicki C Jackson Thurgood Marshall Professor of Constitutional Law, Harvard Law School, Cambridge, MA, USA. Email: vjackson@law.harvard.edu. Search for other works by this author on: Oxford Academic Google Scholar Jerusalem Review of Legal Studies, Volume 21, Issue 1, June 2020, Pages 77–93, https://doi.org/10.1093/jrls/jlz023 Published: 01 September 2020

Encuesta sobre el sistema electoral

En esta encuesta un grupo de profesores de Derecho Constitucional contestan un conjunto de preguntas sobre el sistema electoral, las diferencias entre los sistemas proporcionales y mayoritarios, la influencia del sistema electoral en el sistema de partidos, el origen histórico del sistema electoral español y las posibilidades de reforman, tanto desde el punto de vista procedimental como desde el punto de vista de su posible modificación para lograr una mejor representación de la pluralidad social.In this academic survey a group of Constitutional Law Professors answer some questions about the electoral system, the differences between proportional and mayority systems, the influence of the electoral system in the party system, the origin of the electoral system in Spain, and the procedural ways of a possible reform and the possible changes on it in order to get a better representation of the social plurality.

Speak Freely: Why Universities Must Defend Free Speech

There has been a rise in recent discussions about the purpose of higher education. Due to rising costs, political turmoil, and a perceived overabundance of censoring conservative voices, many are questioning whether universities are just bastions of left-leaning, socialist schools of thought. In his book Speak Freely: Why Universities Must Defend Free Speech, Keith E. Whittington, a constitutional law professor from Princeton University with a background in history, uses history, constitutional law, and philosophy to show how foundational free speech and intellectual freedom are to the American university system. These principles allow for the exchange of ideas in an environment meant to educate and promote intellectual thought. Whittington writes that universities have a mission to “produce and disseminate knowledge.” In order to accomplish those goals, students and faculty must be able to listen and freely discuss different forms of thought and expression in order to substantiate, strengthen, change, or produce knowledge.

Encuesta sobre la libertad de expresión

En esta encuesta un grupo de profesores de Derecho Constitucional contestan un conjunto de preguntas sobre la libertad de expresión, los retos que debe afrontar en la sociedad digital, los llamados discursos del odio, la jurisprudencia del Tribunal Europeo de Derechos Humanos sobre esta libertad, sus límites y ámbito protegido, y sobre el clásico conflicto con el honor y la intimidad de las personas.In this academic survey a group of Constitutional Law Professors answer some questions about the freedom of speech and its challenges in the digital society, about the called «hate speech», the ECHR doctrine on freedom of speech, the limits and limitations of this right, and the classical conflict with honor and privacy.

The Glorious Revolution and the Continuity of Law, by Richard S. Kay

Richard S. Kay, a professor of constitutional law at the University of Connecticut Law School, has written a very old-fashioned book. This is not meant as a criticism: indeed, it is a relief to read three hundred pages of text innocent of words such as ‘representation’ and ‘multivalent’, while ‘culture’ receives only a fleeting mention—and a fairly harmless one at that (‘culture of legal propriety’ [p. 20]). Instead, we are provided with ‘a legal history of the Revolution, focusing on how its makers viewed the importance of adherence to law at the very moment they were breaking a governing legal system’s fundamental norms’ (p. ix). Kay’s account begins with a chapter on ‘the contested constitution’, which examines the varied understandings of England’s constitution as it had developed in the seventeenth century. Four core chapters then explore in turn ‘the attempted “legal” arguments on behalf of the decisions of 1689’ (p. 56); the legal authority of the new king and queen; efforts to cope with the ‘breach of law caused by the Revolution’ (p. 181) in the law courts and the Church of England; and how contemporaries sought to deal with the consequences of the novel ‘true interregnum’ (p. 234) that had existed between James’s first effort to flee England on 11 December 1688 and the proclamation of William and Mary on 13 February 1689. Throughout, Kay offers close readings of debates, issues and individual cases, contending that the dominant mentality on display was expressed through ‘the comforting vocabulary of the common law’ (p. 196), and aimed to accommodate the political ruptures as closely as was possible to pre-existing constitutional understandings. On several occasions we are reminded of thoughtful contemporaries’ reluctance to define issues too closely for fear of provoking disagreements. As he drily remarks, the problems faced by statesmen in 1689 were those ‘most suited to natural hypocrites’, whereas, in reality, many of those actually involved tied themselves in knots trying ‘to remain faithful to some preexisting law’ (p. 180). They were then lacerated in print for their trouble by ideologically purer nonjurors and Jacobites.

Born in Melbourne? Considerations on the origins of Australian political science

ABSTRACTIn a pioneering academic discussion of Australian politics written just before the First World War, William Harrison Moore reinforced the image of Australia as an increasingly autonomous part of a slowly evolving but essentially liberal British Empire. In this 34-page account of ‘Political Systems of Australia’ published in George H. Knibbs, ed., Federal Handbook (Melbourne, 1914), the Professor of Constitutional Law at the University of Melbourne arguably created the ur-text of the Australian Politics textbook. It is argued that there is an unbroken thread of Cambridge-inspired political science teaching and writing at Melbourne from Harrison Moore onwards. The early Australian politics textbooks and ‘Political Systems of Australia’ are cut from the same cloth, making the latter an important precursor.

The banning of political parties (the Spanish case)

Eduardo Virgala (IALS Visiting Fellow; Full Professor of Constitutional Law, University of the Basque Country, Spain) gives an overview of the history and development of the legal status of political parties and associated safeguards in Spain through the constitution, laws and relevant case law in the late 20th and early 21st centuries.

Born in Melbourne? Origins of Australian Political Science

In a pioneering academic discussion of Australian politics written in 1913, William Harrison Moore reinforced the image of Australia as an increasingly autonomous part of a slowly evolving but essentially liberal British empire. In this 34 page account of “Political Systems of Australia” published in George H. Knibbs, ed., Federal Handbook (Melbourne, 1914), the Professor of Constitutional Law at the University of Melbourne arguably generated the ur-text of the Australian Politics textbook. This paper will discuss the author and his text, and seek to evaluate the Melbourne claim to parentage of Australian political studies via this discussion.

Brief of Amici Curiae Professors Laurence H. Tribe and Michael C. Dorf in Support of Petitioners: Obergefell v. Hodges; DeBoer v. Snyder

Brief of Amici Curiae Professors Laurence H. Tribe and Michael C. Dorf in Support of Petitioners: Obergefell v. Hodges; DeBoer v. Snyder

¿Piensan y actúan igual al juez constitucional y el profesor de derecho constitucional?

The author exposes the contradictions between the perspective of the constitutional judge and that of the professor of constitutional law, characterized by the emphasis on practice in one and theory in the other. He proposes a formula of balance between both in pursuit of the enrichment of constitutional justice.

Encuesta sobre la representación política = Academic survey about political representation

En esta encuesta un grupo de Catedráticos de Derecho Constitucional contestan un conjunto de preguntas sobre la representación política; y, más concretamente, sobre la representación política como forma de legitimación del Estado democrático, la crisis que actualmente atraviesa (debido al papel que desempeñan los partidos políticos y a los problemas en la relación entre los representantes y los representados), así como a las posibles vías de superar esta crisis.In this academic survey a group of Constitutional Law Professors answer some questions about political representation, and specifically about political representation as the way of legitimate the democratic state, its current crisis (the role of political parties, the problems in the representative relationship between electors and electeds…) and the proposed initiatives to overcome this crisis.

La Legge di Re Salomone: Ragione e Diritto nei Discorsi di Benedetto XVI. Edited by Marta Cartabia and Andrea Simoncini

During an already long and intellectually prolific life, Joseph Ratzinger (as a German university academic, as Cardinal heading the most important dicastery of the Roman Curia in matters of faith and morals, and as Pope Benedict XVI in the years 2005–2013) has had many opportunities to consider reason and law. This volume, entitled ‘The Law of King Solomon: Reason and Law in the Addresses of Benedict XVI’, presents five of his most significant addresses during the years 2006–2011, together with 10 essays by distinguished professors discussing aspects of Benedict XVI’s thought. There is a preface by the President of Italy, and an introductory overview by the two editors Marta Cartabia, Professor of Constitutional Law and a judge of the Italian Constitutional Court, and Andrea Simoncini, Professor of Constitutional Law. The whole volume is in Italian, although not all the contributors are. Clearly, such an accomplished work merits being translated into other languages. Readers might want to study this volume in conjunction with Massimo del Pozzo, Il Magistero di Benedetto XVI ai Giuristi (2013), a related but different kind of publication.

Legal Theory Lexicon 043: Formalism and Instrumentalism

American law students learn about formalism and instrumentalism early on — although those particular terms may not be introduced explicitly in classroom discussion. Many law students hunger for “black letter law: they are looking for legal rules that can be memorized and applied to the facts in a more or less determinate (or even mechanical) fashion. But in most law school classrooms, this hunger is not satisfied. Instead, the discussion is likely to focus on another set of questions: What should the rule be? What is the purpose of the rule? Would the application of the rule to these facts serve its purpose? Does that rule make sense? And so on. Of course, different professors have different ideas about what makes for good legal rules. Some emphasize good consequences — perhaps as defined by the economic concept of efficiency. Others might emphasize considerations of fairness or distributive justice. Many are progressive or liberal; a few are conservative or libertarian.In constitutional law, “black letter law” sometimes seems to disappear entirely. Instead, there is a Supreme Court that seems to act as some sort of super-legislature, resolving the great questions of the day, whether it be “Who shall be President?” or “May states criminalize sexual activity between persons of the same sex?” or “Shall abortion be legal?” Moreover, students quickly learn that the constitutional text does not seem to be much of a barrier to a result that the Court really wants to reach. An obvious example is Bolling v. Sharpe in which the Supreme Court applied the substance of the equal protection clause to the federal government — even though it is unmistakably clear that the 14th amendment applies only to the state.But even today (and in some ways, especially today), law students are likely to be exposed to another set of ideas about the law. They may have a rather old fashioned professor who insists on discussing cases or statutes as if they did provide rules that decided cases. Some students encounter constitutional law professors who insist on the “original meaning” of the Constitution — discussing lots of history (and fewer cases) than their colleagues. In some courses, students run into professors who talk about “plain meaning” approaches to statutory interpretation.In other words, the legal academy is divided in its allegiance to various forms of legal formalism and legal instrumentalism. This entry in the Legal Theory Lexicon introduces the formalism-instrumentalism debate. As always, the discussion is aimed at law students — especially first year law students — with an interest in legal theory.

Amicus Curiae Presented to the Inter-American Court of Human Rights: In the Case Allan R. Brewer Carras vs. The Bolivarian Republic of Venezuela

Leo Zwaak, Diana Contreras-Garduno, Annick Pijnenburg, Lubomira Kostova and Tomas Konigs, on behalf of the Netherlands Institute of Human Rights (SIM), presented an amicus curiae brief before the Inter-American Court of Human Rights in the case of Allan R. Brewer Carias v. the Bolivarian Republic of Venezuela later this year. This case was submitted to the Inter-American Commission on Human Rights in January 2007 by the legal representatives of Mr. Brewer: Pedro Nikken, Helio Bicudo, Claudio Grossman, Juan E. Mendez, Douglas Cassel, and Hector Faundez Ledesma. The case concerns the criminal proceedings started against Mr. Brewer, an internationally renowned constitutional law professor, for his alleged involvement in an attempted coup d’Etat in Venezuela in April 2002. It raises important issues in terms of the lack of judicial guarantees and judicial protection in the criminal proceedings brought against Mr. Brewer as well as the freedom of expression of legal professionals. The relevance of this case lies in the fact that violations of fair trial rights by any State pose grave threats to the protection of human rights because it prevents individuals to fully enjoy access to justice and hence, of remedies. Additionally, freedom of expression has an important place in the case because individuals wishing to express their opinion, especially when such opinion is based on purely professional advice, should be able to do so without facing criminal charges.

A Conversation with Justice Ruth Bader Ginsburg

Professor Gillian Metzger: Katherine, thank you for that wonderful overview of all that the Justice has achieved and the history of Columbia Law School. And I want to apologize for those to whom I am showing my back, but this will allow us to have more of a conversation with the Justice. Justice, thank you so much for being with us today. It is a real privilege for us to get to talk to you this way, and we know for the entire audience. You have had--as you have now heard (LAUGHS)--an amazing and just tremendously varied career, spanning so many different roles of academic, public interest advocate, judge, now Justice. We can't possibly cover all of this in the time we have this morning, but what we are hoping to do is talk a little bit about each of these roles, how each step you took influenced the rest, and then we will be throwing it open after our conversation for questions from the audience. We thought we'd begin at the beginning or reasonably close to it. You grew up in Brooklyn and you attended Cornell on a full scholarship, graduated in 1954. And then you went to law school, and you spent your first two years at Harvard where you were one of nine women in a class of more than five hundred. Then came to Columbia where you were one of twelve women--you gained three female cohorts--but out of a class I believe of more than two hundred and eighty. So one first question is what made you decide to go to law school and what was it like being at law school in a group of so few women? Justice Ruth Bader Ginsburg: Gillian, may I just make two footnotes to the splendid introduction that was given for me? I was not the first woman on the Columbia Law faculty. I was the first tenured woman, but Harriet Rabb was here, she came the year before I did, and she started up an employment discrimination clinic with George Cooper. That was the clinic that took on AT&T, The New York Times, and the major Wall Street law firms, and many more. (APPLAUSE) The second footnote is a question for you. I do work terribly hard, you know that, but don't you think that David Souter was number one in how many hours of the day he worked? (LAUGHS) Metzger: I have to say my recollection is that everybody worked ridiculous hours at the Court (LAUGHS), but yes. Ginsburg: But now let me turn to your question. You asked how I became interested in the law. One big turn-on for me was that I was going to college at a time that was not very good for the United States. It was the 50s, the heyday of Senator Joe McCarthy of Wisconsin, who saw a communist in every corner. I was working for a professor of constitutional law, Robert Cushman, as a research assistant. He wanted me to understand how far we were straying from our most fundamental values. And in the course of my work with him, I saw that there were lawyers, brave lawyers, standing up for the people who were called before the Senate Internal Security Committee, the House Un-American Activities Committee. So I thought, well, maybe that's what I would like to do. The other powerful influence was my dear spouse. We had decided that we would do together whatever it was. Medical school dropped out early on, thank goodness, because the chemistry labs interfered with golf practice. (LAUGHS) So then it came down to business school and law school. Well, Harvard, the university Marry set his sights on, made that decision easy for us. Women were not admitted to the business school until the 60s. The law school just started admitting women in 1950, '50-'51 was the first year. I think my father was rather concerned about my interest in becoming a lawyer because, realistically, there wasn't much of a demand for women lawyers. (LAUGHS) But then, when I got married, then it was fine because, after all, I would have a man to support me. (LAUGHS) So did I leave out any part of your question? (LAUGHS) Professor Abbe Gluck: No, that was perfect. So Justice, you graduated from Columbia in 1959, and by 1963, you were teaching in academia. …

A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States

A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States MARK R. KILLENBECK The charge I was given was a truly modest one: the history of the Commerce Clause in forty minutes or less, the constitu­ tional equivalent of Around the World in Eighty Days. Anyone undertaking this task faces two dilemmas. The first is one all constitutional law professors routinely face: the Commerce Clause is most assuredly not what students dream of when they contem­ plate the course. But, as former Justice Wiley B. Rutledge wisely observed: If any liberties may be held more basic than others, they are the great and indispensable democratic free­ doms secured by the First Amend­ ment. But it was not to assure them that the Constitution was framed and adopted. Only later were they added, by popular demand. It was rather to secure freedom of trade, to break down the barriers to its free flow, that the Annapolis Convention was called, only to adjourn with a view toward Philadelphia. Thus the generating source ofthe Constitution lay in the rising volume ofrestraints upon commerce which the Confed­ eration could not check. These were the proximate cause of our national existence down to today.1 The second challenge is the nature of the subject. I am acutely aware that Chief Justice John Marshall felt obliged to apologize at the end of Gibbons v. Ogden, noting “the tediousness inseparable from the endeavor.”2 Cases involving Commerce Clause matters may on occasion generate considerable public interest. But the doctrines involved tend to be dry and lifeless, at least when compared to other areas of constitutional law. Hopefully what follows will overcome these inherent limitations, at least to the extent that the history proves of interest. 282 JOURNAL OF SUPREME COURT HISTORY My thesis is that all parties to the Commerce Clause debate must approach these matters in the light of the need to exercise a “prudent regard to their own common good.” That characterization comes from James Madison, who spoke of the obligation of “the people themselves”—and presumably those who represent them—to exercise “a prudent regard to their own good as involved in the general and permanent good of the Community.”3 Since our focus is on histoiy, it seems appropriate to begin with resort to one favorite interpretive technique: consulting a dictio­ nary. But not just any dictionary. So, we find in the pages of the first edition of Samuel Johnson’s magisterial A Dictionary of the English Language that a “prudent” individual is one who is “practically wise,” and, in a closely related vein, that “prudence” is “wisdom applied to practice.”4 Simply put, I believe any appropriate understanding ofthe history ofthe Commerce Clause and the role it can, has, and should play in this Compound Republic is best shaped by paying close attention to three things: • insights gleaned from the writings of the individual aptly characterized as the Father of the Constitution; • the manner in which the powers conferred and limitations imposed by Article I, section 8, clause 3 have been interpreted and applied; and • the need to be “practically wise,” in particular to shape and apply rules in Commerce Clause matters that reflect “wisdom applied to practice.”§ We begin with James Madison, whose appeal to the need for “prudent regard” is found in one of the most important and most overlooked documents in American constitutional history: his April, 1787 essay, Vices of the Political System of the United States.5 The editors of the definitive edition of Madison’s papers stressed that Vices In 1780, future Justice James Iredell (above) character­ ized certain laws passed in his home state of North Carolina as “the vilest collection of trash ever formed by a legislative body,” an assessment that underscores that the Framers and Founders lived in an era where the states were part of the problem, not the solution. was written during “perhaps the most creative and productive year of [Madison’s] career as a political thinker,” characterizing it as a “masterful” blend of “personal experience and theory.”6 Jack Rakove in turn has appropriately described Vices as “one of those rare documents in the history of political...

Something Went Wrong on the Way to the Courthouse

Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Care Act (PPACA) might be unconstitutional - but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article 3 judges would approach the case? This essay identifies three distinct but complementary factors that might help explain the observed failure. First, instead of conducting a neutral assessment of the actual probabilities, law professors engaged in motivated reasoning, based on their preexisting political and policy preferences. Second, the psychology of constitutional law professors led them to massively overstate the probability of success and suppress any misgivings or cautious hedging. Third, once it became clear that the PPACA was in serious jeopardy, our nation's law professors decided to pursue politics by other means, and organized the academic equivalent of a vigilance committee.

Obama the Con Law Professor; Obama the President with Judicial Appointment Power

This essay explores whether, how or, perhaps, to what extent President Barack Obama’s time as a constitutional law professor at the University of Chicago is reflected in his approach to judicial appointments. Three things are striking about President Obama’s initial approach to judicial selection. First, he has appointed the most diverse bench of any President. Second, he has appointed judges rather slowly compared to his predecessors. And, finally, he has appointed a rather politically moderate bench. How might these particular and in some ways surprising aspects of President Obama’s judicial appointments reflect – or not reflect – his time as a constitutional law professor?

10 x 10

Samuel Issacharoff is the Reiss Professor of Constitutional Law at New York University School of Law, having previously taught at the University of Texas and Columbia Law School. His research addresses the law of the political process and constitutional law, as well as issues in civil procedure (especially complex litigation and class actions). He is a coauthor of the seminal Law of Democracy casebook and recently served as the reporter for the Project on Aggregate Litigation of the American Law Institute. Professor Issacharoff is a Fellow of the American Academy of Arts and Sciences.