Constitutional Tradition Research Articles

Against 'Associate EU Citizenship'

UK nationals will lose their EU citizenship status as a result of the Brexit referendum. To prevent this, several commentators, including the European Parliament Brexit negotiator, Guy Verhofstadt, proposed the grant of associate EU citizenship to UK nationals to safeguard their rights as EU citizens after Brexit. We make the case against associate EU citizenship, dismissing it on three grounds. First, it violates the letter and the spirit of EU law. Second, it violates core EU values, including the EU’s promise of respect for the constitutional traditions of the Member States, and the values of democracy and the Rule of Law. Third, it is against the EU’s interests, as associate EU citizenship fails to respect reciprocity in EU relations with third countries and undermines the coherence of the edifice of EU constitutionalism.

Enforcement of EU Values as a Political Endeavour: Constitutional Pluralism and Value Homogeneity in Times of Persistent Challenges to the Rule of Law

The EU’s foundational values democracy, human rights and rule of law are shared by the Member States and rooted in their constitutional traditions. Constitutional pluralism recognises the legitimacy of parallel legal systems. Pluralism however cannot provide answers when it comes to the design and enforcement of foundational values, which require homogeneous acceptance throughout the Union. Deficiencies affect the entire Union legal order. The argument of national identity in Art. 4(2) TEU must not be construed as a means to undermine the application of the law, but is an EU-law internal counterbalancing instrument. This is of relevance because, when addressing systemic deficiencies, the enforcement under Art. 7 TEU may interfere with effectively internal matters of Member States. In order to protect common values the EU has to avail itself of safeguarding competences under Union law, even in areas outside of application of EU law stricto sensu (the acquis). Using the example of the rule of law, it can be demonstrated that value protection is a predominantly political task that calls for political solutions together with effective rule of law dialogues, and needs EU institutions to act as facilitators and guardians of the treaties by making use of the enforcement instruments under Art. 7 TEU and Art. 258 TFEU. In parallel, a culture of values could be fostered by an evidence-based monitoring within a new instrument of “CVM for all” (Cooperation and Verification Mechanism).

John Redmond and the First World War

John Redmond and the First World War John Redmond and the First World War Ronan McGreevy On the week before the centenary commemorations of the Easter Rising in 2016, a banner appeared in front of College Green, the seat of the Irish parliament until 1800. It was placed there to recognise the constitutional tradition in Irish history. The four men depicted on it were Henry Grattan, Daniel O’Connell, Charles Stewart Parnell and John Redmond. There is no dispute about the legacy of the first three. They have GAA grounds and streets named after them. Their statues are in prominent parts of our capital city. But what of Redmond? Within days of the banner going up, a group I had never heard of, called Misneach, scrawled the number 35,000 on the image of Redmond.1 There was no explanation offered for the figure: none was required. 35,000 is the usual best estimate for the number of Irish who died in the First World War. I think the figure is greater than that but that’s an argument for another day. Not for the first time, John Redmond was blamed for the worst loss of life on the battlefields in Irish history. The graffiti was a provocation, but it raised a fair question about Redmond’s role in encouraging so many Irishmen to fight in the war. Much of the commentary about this is based on a false premise. As a nation, if you could call us that in 1914, we had no choice but to be involved in the war. We no more had a choice in the matter than the peoples of Scotland or Wales had a choice when the invasion of Iraq happened in 2003. We were part of the United Kingdom and the United Kingdom was at war with Germany. Build-up to war John Redmond’s choices have to be seen in that context. It is fair to say that the war came at the worst possible time for him, just a week after the breakdown of the Buckingham Palace talks in which he, John Dillon, Edward Carson and James Craig tried to find a compromise solution to the problems of Ulster and Home Rule. The principle of partition had been conceded with the greatest reluctance by Redmond. The question was what areas of Ulster would be excluded and whether that exclusion Studies • volume 107 • number 428 407 would be temporary or permanent. Just ten days before the outbreak of hostilities, the authorities tried to intercept guns that were being landed at Howth and, in what is known as the Bachelor’s Walk Massacre, three civilians were killed. The standing of the British Army in Ireland could hardly have been lower. The incident convinced nationalist Ireland that there was one law for nationalists and another for unionists in Ireland. At the same time, the long peace that Europe had enjoyed since 1815 was coming to a bitter end. Churchill, then a cabinet minister himself, memorably described the scene as cabinet colleagues pored over the poor law maps of Tyrone, trying to ascertain where there was a nationalist majority. Meanwhile, an ashen-faced foreign secretary, Sir Edward Grey, arrived with the Austrian ultimatum to Serbia. As Churchill remembered it, ‘The parishes of Fermanagh and Tyrone faded back into the mists and squalls of Ireland and a strange light began immediately and by perceptible gradations to fall and grow upon the map of Europe’.2 Events that fateful August of 1914 moved with a stunning swiftness. On 2 August, the cabinet agreed it would not be sending British troops to the continent if Germany invaded France. A day later everything changed utterly when Germany invaded neutral Belgium as part of the Schlieffen Plan. The neutrality of Belgium had been guaranteed by the Treaty of London in 1839. It was this violation of international law that persuaded the British government to make the fateful decision to go to war. ‘Are you really going to defend Belgium for a scrap of paper?’, the German Chancellor asked the British ambassador to Berlin.3 The answer was ‘yes’. Germany had fatally miscalculated the willingness of the British to become involved...

Representative Legislatures, Grammars of Political Representation, and the Generality of Statutes

AbstractThis article explores the claim that representative legislatures should create general legal norms. After distinguishing the requirement that statutes be general from the broader rule‐of‐law idea that law be general, I concentrate on the French constitutional tradition to argue that the plausibility of the claim turns on the elucidation of a set of social norms and understandings about the proper role of representative legislatures mediating between abstract ideals of the common good and local practices. I call these norms grammars. The article then briefly compares the French “Sieyèsian” with the US “Madisonian” grammar of political representation regarding the issue of the generality of statutes and concludes with a plea for an in‐depth comparative investigation into different such grammars.

Relative Impermeability of the Wall of Separation: Marriage Equality in the Philippines

AbstractThe Philippine doctrine on the separation of church and state, while rooted in American constitutional tradition, continues to show vestiges of Spanish colonial rule. The Philippines adopted the union of church and state for three and a half centuries as a Spanish colony, but became a secular state after it was ceded to the United States of America in 1898. The wall of separation has since been maintained in all subsequent Philippine constitutions, only to be compromised in statutes and daily life. That conflict is most evident in marriage, a legal institution openly shaped by canon law. Falcis v Civil Registrar-General, the marriage equality petition pending before the Philippine Supreme Court, seeks to end that practice. But note the irony: while the US Supreme Court in Obergefell v Hodges secularizes marriage and disconnects it from religion, Falcis takes an opposing route in anchoring marriage equality on religious freedom. This article looks at the prospect of that gambit. By contrasting the legal and theological contexts from which Obergefell and Falcis stem, the article shows how the demands of same-sex union and church-state separation are tightly intertwined.

Alexander Somek'sThe Cosmopolitan Constitution

The Cosmopolitan Constitutionis an intriguing and puzzling book. In particular, the book has the uncanny ability to render fresh what is for the constitutional theorist familiar territory such as the debate on judicial supremacy and the counter-majoritarian difficulty, the expansion of the proportionality principle, etc. In fact, one of the most interesting aspects of its overarching argument is that given our present conditions—such as those of the cosmopolitan constitution or constitutionalism 3.0—we should be increasingly plagued by self-doubt, at least to the extent that we are to remain committed to the tenets that once animated our constitutional traditions. This implies that the partial sense of disorientation with which one is left after reading the book is deliberately provoked precisely because of the main insights it has to offer.

Administrative districts in the Republic of Serbia – constitutional status and perspectives

Introduction:Districts in Serbia have a long tradition, dating back to the early 19th century. In that period, they performed competences of state admin­istration and local self-government at the same time. Serbia left the socialist model of constitutionality and returned to liberal-democratic constitutional institutions in 1990, and districts have their new position in constitutional system – districts are exclusively regional offices of ministries, a form of terri­torial deconcentration of power. Their main function is to accomplish orders is­sued by central administrative authorities (ministries). First part of this paper analyzes development of administrative districts and their current position in the constitutional system of Serbia (status, organs and competences). Second part of the paper discusses some options for improving of the position of ad­ministrative districts in the future, within the possible reform of the territorial organization of Serbia. Materials and methods:The methodological basis of the research consists of general scientific and special methods of cognition of legal phenomena and processes in the field of constitutional and administrative law: the method of systemic structural analysis, method of synthesis of socio-legal phenomena, the comparative legal method, formal logical method, historical method. Results:The analysis showed that the status of administrative districts should be changed. Administrative districts is the Republic of Serbia are of­fices (branches) of ministries that perform tasks of state administration They are therefore a kind of regional state administration bodies and organizational units of ministries. On the other hand, the existing districts, 29 of them, can represent a good basis for introduction of second level of local self-government in the Republic of Serbia. In this way, districts could obtain some competencies to conduct independently, by their own organs, elected directly by the citizens. In addition, districts would be able to keep their existing prerogatives and thus become a kind of “mixed” territorial units, which would unify functions of lo­cal government and local self-government. After all, municipalities in Serbia in many ways already have such a character. This solution would increase efficiency and democratic nature of the system in Serbia and strengthen the position of local self-government. However, in order to improve the position of districts in Serbia in this manner it is not enough to perform only revision of laws, but also the constitutional revision as well. Conclusions:The main conclusion is that districts should change their le­gal nature. They should become “mixed” territorial units (administrative and self-governing). In that way, they would be very similar to Serbian districts of the 19th century. Reform of the territorial organization of the Republic of Serbia, which seems inevitable, should seriously consider changing of the legal status and nature of districts. They could become respectable territorial units, which could have “mixed” character, so they could unite in themselves both functions of state administration and functions of local self-government. Such a character, which existed in the Serbian constitutional tradition for a long time, would allow districts, as both administrative and self-governing units, to establish more solid relationship between local communities (municipalities and cities) and institutions of central government. Their territorial, economic and demographic potential would be a solid basis for increasing of efficiency of local self-government and state administration in the Republic of Serbia. Besides, application of this model would completely overcome senseless region­alization project, which would surely bring more damage than good.

Od demokracji bezpośredniej do rządów zgromadzenia? Rousseau i problemy republikańskiego konstytucjonalizmu

The following article considers the problems connected with the relationship between the principles of the direct democracy and the gouvernement d’assemblée. The values contemporarily ascribed to these principles are often counted among different, sometimes even opposing, traditions of republican constitutionalism. However, the proposed analysis of Rousseau’s thought suggests that the general intellectual tendencies that are attributedto both systems might originally have had a lot in common. Furthermore, they embody the two different republican ways of implementing the very ideas of popular sovereignty and the accountability of the public authorities to the citizens. The undertaken juxtaposition of the contents of the Social Contract and of the Considerations on the Government of Poland may even point to an evolution of Rousseau’s stance. It can be discerned especiallyin the approval in the second work, which pertained to one of the largest European states of that time, as it conveys the need to shift the responsibility for law-making to the assembly of deputies (the Sejm). The proposition of transferring this responsibility to a quasi-representative body corresponds perfectly with the warnings against the abuses of an unchecked executive, which are equally stringent in the Social Contract. This actuallydenoted that Rousseau was ready to accept some sort of gouvernement d’assemblée in large states. In the end however, it did not mark a departure from the ideals of the direct government, especially after taking into consideration Rousseau’s extraordinary appreciation of the institutions of deputy directives and – treated already as an emergency measure – confederation.

The Political Lives of the ‘Disappeared’ in the Transition from Conflict to Peace in Colombia

ABSTRACTIn Colombia’s transition between conflict and peace the ‘disappeared’ have emerged as a potent symbol of the history of impunity and exclusion and their exhumation a sign of progress towards peace and reconciliation. As elsewhere in Latin America the families of the disappeared have been at the core of a ‘human rights forensics’ seeking to exhume the disappeared as victims of political violence and to hold perpetrators accountable. However, in Colombia the state’s attitude towards human rights is ambiguous. It has introduced transitional justice laws building upon strong Colombian constitutional traditions to project a strong human rights commitment. In doing so it has manipulated Colombians’ faith in ‘magical legalism’, the belief in the transformative capacity of law as an alternative to the chronic failure of democratic politics. However, the state has turned human rights accountability into an enormous legal bureaucratic registration exercise. They have de-politicized the ‘disappeared’ through a ‘humanitarian forensics’ which collectivizes all victims as ‘suffering’ victims of the 50 year conflict and places them in long human rights queues for reparations. Impunity also persists in the transition between conflict and peace because of the corporate state strategy of relying on partnerships with business and armed actors to extend its territorial sovereignty. The franchising of sovereignty as a strategy to extend governance only perpetuates the conditions for further disappearance and displacement.

Multi-Speed Parties and Representation: The Evolution of Party Affiliation in Germany

In the last two decades party membership numbers have declined in many parliamentary democracies, including in Germany. This article investigates how German parties have reacted to their losses, considering both the domestic and wider implications of their evolving responses. Their approaches include introducing multi-speed affiliation options, and providing new opportunities for members to affect party decisions. These changes are not unique to Germany, but they may have special meaning here, because the Federal Republic’s constitutional tradition treats membership-based political parties as key engines of representative democracy. The German parties’ experiences illustrate how membership losses can spur organisational experimentation, including in ways that have the potential to boost partisan political participation both within and around the parties.

Towards Republican Citizenship: A Reflection on the Jurisprudence of Former Chief Justice Sandile Ngcobo

In modern scholarship, the analysis and use of the term ‘citizenship’ takes many forms and engages many disciplines and intellectual traditions. Ngcobo CJ has been at the centre of a fundamental debate over the meaning of citizenship that has developed in South Africa’s post-apartheid constitutional democracy. Drawing on previous research, the article briefly sketches what might be termed the republican tradition of democratic thought. It then provides an analysis of several significant cases in which Ngcobo CJ participated and the resolution of which he influenced. The article argues that consistent with and indeed constructive of an emerging republican tradition of democratic constitutionalism in South Africa, Ngcobo’s jurisprudential contributions recognise and articulate the public-spiritedness that the Republic of South Africa demands of each of its citizens.

The frontiers of executive and judicial power: differences in common law constitutional traditions*

ABSTRACTThis article discusses the boundary between the powers of the judiciary, the legislature and the executive branch with regard to issues involving the rule of law and fundamental rights in common law jurisdictions. It examines the different approaches adopted by judges and judiciaries in different common law jurisdictions in handling legislative and executive acts that touch upon fundamental rights, moral issues, and acts of state, and points out that the demarcation of powers among the three branches involves the balancing of different interests which will change with time. Besides, it also concludes that while the constitutional framework and culture of a jurisdiction are important factors determining the role of its judiciary and the limit of judicial power over executive and legislative acts/decisions, it is expected that there will be an increasing consensus on the boundary of judicial power across jurisdictions subscribing to the rule of law and fundamental rights.

Political Modernization in Spain Between 1876 and 1923

The advent of democracy in most European countries was preceded by a long constitutional tradition that dates back to the early 19th century. In Spain, the process, that had begun in 1812, was interrupted in 1923 by a military coup. The democracy started eight years later with the advent of the Republic, but with a very unstable political regime in place that eventually led the country into a civil war and four decades of totalitarianism. For many historians though, the constitutional monarchy in Spain, in place since 1876, avoided modernization and democratization. Many critics insure that the mechanisms of political representation; the elections, the political parties, and the election procedure, prevented the constitutional liberalism in Spain to evolve into a full democracy. Along these lines, they claim that every election was the result of the electoral fraud. However, the analysis of the aforementioned factors refutes these assertions and dispels most of the misconceptions that have been accepted until now.

A Critical Perspective on Associate EU Citizenship after Brexit

UK nationals will lose their EU citizenship status as a result of the Brexit referendum. To prevent this, several commentators, including the European Parliament Brexit negotiator, Guy Verhofstadt, proposed the grant of associate EU citizenship to UK nationals to safeguard their rights as EU citizens after Brexit. We make the case against associate EU citizenship, dismissing it on three grounds. First, it violates the letter and the spirit of EU law: the Treaties make the enjoyment of EU citizenship status contingent on the possession of a Member State nationality and require the Union to respect the rule of law as well as the constitutional traditions of the Member States. Second, it violates core EU values amounting to a tool for the EU to pre-empt vital democratic choices at the national level, thus undermining the established division of powers between the Union and the Member States as well as the effet utile of Article 50 TEU. Third, it is against the EU’s interests, as associate EU citizenship fails to respect reciprocity in EU relations with third countries and undermines the coherence of the edifice of EU constitutionalism. Besides being legally unsound he idea of associate EU citizenship thus fails on normative and on pragmatic grounds.

The Concept of Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to its Core

Essence of fundamental rights – Article 52(1) of the Charter – Multi-level protection of fundamental rights in Europe – Sources of essence – European Court of Justice case law on ‘very substance’ of fundamental rights – Constitutional traditions common to the Member States – European Court of Human Rights – Court of Justice of the EU –Schrems– Principle of proportionality – Absolute theory – Relative theory – Classification of interferences with essence – Objective interference – Subjective interference – Absolute rights – EU methodology for determination of interference with essence

Ernst-Wolfgang Böckenförde on Constitutional Judging in a Democracy

This Article explores Ernst-Wolfgang Böckenförde's views about constitutional judging in a democracy. It offers three ideal types of constitutional judging, each drawn from the extra-judicial writings of prominent constitutional judges who represent it. The three types are: (1)the prophet, who views the constitution as visionary and value-laden, and who entertains an expansive view of the judge's role in giving voice and validity to that vision and those values; (2)the essayist, who shares the prophet's sense of the vast scope and myriad resources of constitutional judging, but who, lacking the prophet's confidence in getting such bewilderingly difficult questions right, approaches constitutional judging cautiously, skeptically, and deferentially; and (3)the executor, who views constitutional judging as the effort to discern the constitution's concrete, limited content, and to enforce that content unflinchingly. Böckenförde, the Article argues, was an executor—one who shared many interpretive commitments with the two most prominent executors in the American constitutional tradition: Hugo Black and, especially, the late Antonin Scalia.

“Transfiguration” and Actual Relevance of the Common Constitutional Traditions: Past, Present and Future

Abstract 1. Declaration of intention. - 2. The past: common constitutional traditions at the genesis of the European integration process. - 3. From Maastricht until (the Charter of) Nice: the Common constitutional traditions’ present perfect - 4. After the entry into force of the Charter: common constitution traditions today: still a meaningful concept? - 5. Relevance of the common constitution traditions in the (next) future. - 6 Final remarks.

Iran’s 1907 constitution and its sources: a critical comparison

Scholars of Iranian constitutional history have long recognized the influence of the Belgian and Bulgarian constitutions on the Iranian 1907 constitution. The exact character and extent of these and other constitutional influences have remained unclear, however. This article provides an analytical comparison of the 1907 Supplementary Fundamental Laws with the 1831 Belgian, 1876 Ottoman and 1879 Bulgarian constitutions that served as models and sources of inspiration. We also provide an easily navigable annotated version of relevant constitutional provisions in the footnotes for scholars interested in tracing models for particular provisions and have provided a complete version of the 1907 Supplementary Fundamental Laws and its sources on our website. In doing so, this article and the accompanying materials hope to clarify where these influences begin and end, where they have been modified or ignored, and where Iran’s constitutionalists innovated by introducing more stringent separation of powers or new institutions. It is thereby demonstrated that Iran’s constitutionalists critically engaged with previous constitutional traditions, rather than merely copying provisions from earlier models. Thus, Iran’s 1907 Supplementary Fundamental Laws should be regarded as an organic engagement with and global extension of the European liberal tradition, rather than as a merely peripheral or derivative development.

Rights in the Australian Federation

The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched bill of rights. Yet Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.

Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will result in a tidal wave of religious claimants striking down government action. Our Article presents an observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenges offered as a default remedy elsewhere in constitutional adjudication. Courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror the exemptions critics fear in the context of religious exercise. The Article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.