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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

Safeguarding Democratic Institutions

Samuel Issacharoff, NYU School of Law

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

A discussion of courts and populism begs for definitional boundaries.  While courts are generally institutionally confined, the same cannot be said for populism, a political moniker that risks confounding everything from the majoritarian core of democracy to the demagogic claims of tyrants in the making.

As difficult as precise definition might be, it is clear that there is a shift in democratic politics.  The post-WW II political parties of Western Europe are in serious disrepair and the political tones in the Netherlands, France, Italy, Denmark, and other nations, are being defined by a politics of anger surging on the left and the right.  Meanwhile, Britain voted Brexit over the opposition of every established political party, and the recent American presidential campaign featured a Democratic challenger who pointedly never joined that party, and a Republican candidate (and now president) who had only a fleeting and tenuous tie to the Republican Party.

When everyone knows what is happening, and definitions are elusive, it is tempting to fall back on the jurisprudence of, “I know it, when I see it.”  But some features are critical, even if imprecise.  As Jan-Werner Müller addresses in his book on the subject, the new populism begins with hostility to pluralism.  There is a claim to speak for a unified people, fighting against elites whose illegitimacy is a source of great anger.  The impulse toward what Nancy Rosenblum terms “holism” challenges the concept of institutional accommodation that underlies constitutional democracy.  A monist commitment to an abiding truth that captures the interests of all the people (save the unredeemable outliers) cannot commit to the rotation in office, the ability of those on the outside today to emerge triumphant tomorrow, and then to see the process reverse again.  Where Adam Przeworski and his colleagues use that rotation, or what Bernard Manin terms the renewal of consent, as the operational definition of democracy, the populist impulse is toward a plebiscitary affirmation of the true will of the people.

Stable democracies require an internalization of politics as repeat play.  Populist elections claim a mandate from the people beyond choosing officeholders.  Elections over mandates risk the same repudiation of institutional accommodation of divisions as do plebiscites.  It is not that populism is plebiscitary as such; rather, neither is well suited to institutionalized politics that presume deliberation, procedural order, and accommodation.  For both plebiscites and populism, the election defines the agenda.  Period.

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Published on April 29, 2017
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Considering the First Phase of Ireland’s Citizen Assembly

Eoin Carolan, University College Dublin

Last weekend, Ireland’s Citizens’ Assembly issued its recommendations on the first of the topics which the Houses of the Oireachtas (Irish parliament) asked it to consider: the Eighth Amendment to the Constitution.

This amendment, which was approved in a referendum in 1983, inserted a new Article 40. 3. 3 into the Constitution. This stated that:

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

While the language of the Article is general, it is usually perceived as concerned with abortion law and policy. Its purpose was described by one Supreme Court judge as to “prevent the introduction of abortion either by legislation by the Oireachtas or by judicial decision”. (Roche v Roche [2010] 2 IR 321, per Hardiman J).

The recommendations of the majority of members – slightly complex and seen by commentators as a surprise – were to remove the provisions of the Constitution that currently regulate the law on abortion; to replace them with a specific provision confirming the entitlement of the Oireachtas to legislate; and to introduce legislation which would allow termination of a pregnancy for any reason up to 12 weeks gestation; for certain specified reasons up to 22 weeks gestation; and for a limited number of additional reasons with no restriction as to gestational age (full – and less simplified – results can be seen here).

There has been an active campaign around the ‘repeal’ of the Eighth Amendment in the last few years so that the decision of the majority in its second ballot to recommend replacement rather than repeal generated some confusion (and criticism).

This was partly because of the sequential nature of the voting process adopted. Seen in light of the majority’s later recommendations for a liberalisation of Ireland’s law on abortion, however, it seems clear that the intention of members in recommending a specific provision was to limit the potential for ambiguity about the legislative capacity of the Oireachtas in this area.

While there is a general argument that abortion law and policy is not an appropriate issue for constitutional entrenchment, the majority’s recommendation to retain a specific reference has some logic in the Irish constitutional context. There are two main reasons for this.

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Published on April 29, 2017
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Conference on “Imposed Constitutions: Aspects of Imposed Constitutionalism”

Richard Albert, Boston College Law School

Xenophon Contiades (President of the Centre for European Constitutional Law, Convenor of the Research Group on Constitution-Making and Constitutional Change in the IACL) and Alkmene Fotiadou (Centre for European Constitutional Law) are once again hosting a conference on an important and provocative subject. This time, the subject is “Imposed Constitutions: Aspects of Imposed Constitutionalism.”

This program, copied below, is a collaboration among the Research Group on Constitution-Making and Constitutional Change of the International Association of Constitutional Law, the Department of Law at the University of Nicosia, and the Centre for European Constitutional Law–Themistocles and Dimitris Tsatsos Foundation.

Proceedings run from May 5-6 in Nicosia, Cypus. Questions may be directed by email to centre@cecl.gr.

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Published on April 28, 2017
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Trapped in the Age of Trump: the American Supreme Court and 21st Century Populism

Or Bassok, University of Nottingham

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here. The author thanks Shay Levi for his valuable comments.]

The American Supreme Court is currently ill-equipped to confront populism. The Court’s deficiency is not because of the political balance between justices nominated by Republican Presidents and those nominated by Democrat Presidents. It is a result of a deeper shift in the way the concept of judicial legitimacy is currently understood in the US. In this post I will briefly present this shift that I analyzed in length in a series of articles.

The introduction of public opinion polling that measured public support for the Court meant that for the first time in American history, the elected representatives lost their monopoly on the claim to legitimacy based on public support. Until the invention of public opinion polls, no source of data could give direct, regular, and reliable measurements of public opinion apart from elections.[1] Public opinion polls introduced for the first time in history an independent source of evidence, considered reliable by all relevant players, of public support for the Court.

One may think that opinion polling is a sham; that it constructs public opinion more than merely measuring it, and yet several decades of constant polling reshaped the notion of democratic legitimacy in the US. Since the 1980s and the rise of ‘public opinion culture’, the term ‘public opinion’ came to be synonymous with opinion polls results.[2] Opinion polls have served in the public discourse as an authoritative democratic legitimator.[3] Between elections, political players rely heavily on these polls in deciding on their positions.

The entrance of public opinion polls as a reliable metric, measuring the Court’s public confidence and demonstrating it publicly, made it possible to view the Court’s legitimacy in terms of public support for the first time in history. This shift brought changes in the institutional dynamic between the branches of government and in the Court’s jurisprudence.[4] Not less importantly, the shift brought significant changes in the concepts the legal community uses to understand the Court’s legitimacy.

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Published on April 28, 2017
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Courts in a Populist World

Alon Harel, The Hebrew University of Jerusalem

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

“I did not come to in order to be loved but in order to voice the sentiments of the public,” said Minister Miri Regev.[1] Meanwhile, an Opposition Member of Knesset exclaimed that “we are here because we reflect and represent the people.”[2] These statements are emblematic of the rise of populist politics. The populist rhetoric exhibited by Israeli politicians signals a new development in Israeli politics. I call this development public sentiment mirroring (or “mirroring” for short). Mirroring requires the state to replicate in its policies the dominant or prevailing public opinions. It also requires weakening the power of institutions which “distort” the “authentic” voice of the public such as courts, the media, the academia and other “elitist” institutions.

Populist politics and populist judiciaries cast a shadow over constitutionalism. Coupled with vehement opposition to the so-called ‘judicial activism’ of the Israeli High Court of Justice (HCJ) and declining public confidence in the HCJ, populism poses a very real threat to Israel’s constitutional order.

In Israel, the rise of populist politics has seen increasing public opposition to constitutionalism, and in particular to judicial review by the HCJ. By bolstering the case for mirroring the public and depicting the courts as inferior reflectors of public opinion (compared to the legislature or executive), populism threatens the authority of the court.  Courts have responded to this threat in different ways. Sometimes, courts themselves embrace populism. At other times, courts resist the populism, employing a range of principles to hold their ground, including legalism and core social values.

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Published on April 27, 2017
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Distinguishing Among Referenda (I-CONnect Column)

Aslı Bâli, UCLA School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

Over the last two months, the role of the referendum as a tool of populist mobilization and democratic decline has weighed heavily on my mind. The Turkish referendum was the obvious catalyst, but the use of referenda is also a subset of the broader question of how democratic processes may be used to subvert democracy. And all of these concerns are related to the question of the role of comparative law in a time of “democratic decay,” as my fellow I-CONnect columnist, Tom Gerald Daly has framed it. A quick survey of recent ICONnect posts makes clear the widespread concern about the corrosive effect of populist strategies on democratic practices. For instance, the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts draws attention to the degree to which populism may adopt the language of democracy and constitutionalism—as in Jan Werner Muller’s discussion of the Hungarian case—while eroding the substantive “minimum core” of democracy, including “longstanding commitments to free and fair elections, the separation of powers, basic human rights and government accountability,” as Rosalind Dixon argues.

These recent ICONnect pieces all engage important dimensions of the question of how populists harness the engine of democratic processes to undermine basic democratic commitments. How can we best understand this dynamic in the case of referenda? This question seems especially important in light of the remarkable number of high profile referenda that have taken place over the last year. Perhaps the most famous referendum of 2016 was the Brexit vote, but other examples include the constitutional referenda in Italy and Thailand, the Hungarian referendum over that country’s EU migrant quota and the referendum on the Colombian peace deal.  The Turkish constitutional referendum earlier this month may well have been a particularly acute instance of invoking the popular will to disable democratic restraints, but it is not the only one.

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Published on April 27, 2017
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Populist Constitutionalism & The Democratic Minimum Core

Rosalind Dixon, University of New South Wales

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

Democratic “populism” is on the rise worldwide. In the last decade, Latin America has seen a wave of populist, neo-Bolivarian political change; Hungary and Poland have seen the election of nationalist parties openly opposed to the European project; and a majority of voters in the UK have voted for Brexit.  In the US, for the first time since 1953, a candidate with no prior political experience has been elected President, and the Tea Party has continued to make inroads in controlling the Republican Party.  If recent trends continue, in countries such as France, there is also likely more change of this kind to come.

For constitutional scholars, this new form of populist politics invites us to rethink many key assumptions of the field – i.e. that there are certain countries that count as “stable” rather than fragile constitutional democracies,[1] or that we can expect a continuing commitment to openness, internationalism and regional co-operation at least among such democracies.  Before we can begin this task or reassessing our core assumptions, however, we clearly need a better understanding as a field of the new phenomenon we are grappling with – i.e. what exactly is this new form of democratic populism, or populist constitutionalism?

Clearly not all forms of popular constitutional engagement are undesirable. Certain forms of popular participation in the process of constitutional implementation can actively contribute to overall democratic legitimacy.  This is one reason why ‘popular constitutionalists’ in the US actively defend the role of Congress in the process of constitutional interpretation.[2]  Many theories of weak-form review also implicitly rest on a similar logic about the value of a constitutional system being responsive to the views of democratic majorities.[3]  To define ‘populist constitutionalism’, we thus need criteria that can effectively distinguish it from this more normatively desirable form of popular constitutionalism.[4]

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Published on April 26, 2017
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Populism and the Courts

Andrew Arato, The New School

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

The antagonism of populist governments to apex courts is a matter of historical record, starting with Peronism, the first time that an openly populist movement established its own government. Currently, it is demonstrated by repeated conflicts between populist executive power and constitutional courts, and the often successful attempts of the former to pack and disempower the latter. Recent events in Venezuela, Israel, Hungary, Turkey and Poland indicate the attending harm to democratic government, and even these cases do not exhaust the present salience of the populist challenge that has now reached the United States. I believe that the way to oppose these trends requires a strategy that is both legal and political, based on the mutual support of associations and initiatives of civil society and courts.

What is populism? Given the pervasiveness and loose journalistic use of the term, attempts to define the phenomenon by induction are doomed to fail. It is better in my view to immanently criticize the best ideological attempt to justify populist politics, and thus reconstruct the main dimensions of the phenomenon from a logically coherent systematic argument. I have done this using the work of Ernesto Laclau [1] and have derived the following important elements of the phenomenon:

  1. Populism identifies popular sovereignty by referring to a part of the population that supposedly incarnates the people as a whole;
  2. constructs a rhetorical chain of equivalences, from heterogeneous and incompatible demands of the segments of “the people” so identified;
  3. establishes friend and enemy relations, over a frontier of radical antagonism, thereby extricating “the people” from its enemies within the population as well as outside;
  4. identifies the will of the extricated genuine “people” with the will of a group, and to avoid the possibility of a division, almost always with the name and will of a single leader.

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Published on April 25, 2017
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What’s New in Public Law

Angelique Devaux, French Licensed Attorney (Notaire)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of Pakistan ordered further probes into alleged corruption of Prime Minister Nawaz Sharif in the so called“Panama Leaks case.
  2. The Supreme Court of Israel ruled that some businesses may remain open on Shabbat in Tel Aviv.
  3. The U.S. Supreme court found unconstitutional Colorado policy of not automatically refunding court fees when a defendant’s conviction is reversed.
  4. The Supreme Court of India ruled that if a person does not protest someone illegally occupying her property for 12 years, then the squatter would get ownership rights over that property.
  5. The Supreme Court of Canada is expected to be asked for an advisory opinion on a genetic privacy bill.

In the News

  1. Russian lawmakers suggested a bill depriving terrorists of Russian citizenship.
  2. Three child bride survivors challenge Indonesia’s 1974 Marriage Law in the Constitutional Court.
  3. The Justice Minister of Turkey stated that the Constitutional Court has no jurisdictions over election appeals.
  4. The Nepal Government presented a new amendment constitution bill.
  5. Ireland may change its constitutional view on abortion.
  6. Russia banned Jehovah’s Witnesses after the Supreme court’s found the religion to be an “extremist sect”.
  7. The centrist Emmanuel Macron and the far right Marine Le Pen have both passed the first round and are qualified for the second round of the French presidential elections.

New Scholarship

  1. Tomasz Tadeusz Koncewicz, The “emergency constitutional review” and Polish constitutional crisis. Of constitutional self-defense and judicial empowerment, 2 Polish Law Review (2016) (arguing for “emergency constitutional review” exercised by ordinary courts in constitutional self-defence)
  2. Tom Gerald Daly, A Constitutional Court for Sri Lanka? Perceptions, Potential and Pitfalls’, (2017) (discussing the proposal to establish a Constitutional Court of Sri Lanka in the context of the ongoing constitution drafting process)
  3. Steven H. Shiffrin, What’s Wrong With the First Amendment, (2016) (providing a critique of free speech idolatry in a comparative context).
  4. Bilayana Petkova, Domesticating the ‘Foreign’ in Making Transatlantic Data Privacy Law, International Journal of Constitutional Law (forthcoming 2017), (analyzing data privacy protection with a focus on federalism, in a comparison of the United States and European Union).
  5. Manoj Mate, Judicial Supremacy in Comparative Constitutional Law, 92 Tulane Law Review (forthcoming 2017) (examining the prevailing conception of judicial supremacy in comparative constitutional law)

 Calls for Papers and announcements

  1. The sixth edition of the LUISS Summer Program on “Parliamentary Democracy in Europe” will be devoted to “Parliaments, democratic accountability and budgetary powers.” It will run from July 10 to 21. Students can apply for one week or two weeks. Application information, including details on the faculty and fees, is available here. The deadline for applications is April 30.
  2. The School of Law & Social Justice, University of Liverpool, invites submissions to a two-day workshop for postgraduate/early career researchers on “Contemporary Challenges in Constitutional Theory” to be held on June 19-20, 2017. The submission deadline is April 30, 2017.
  3. The Center for Constitutional Law at Akron seeks paper proposals for its Fall Virtual Symposium on Constitutional Remedies to be held on November 10, 2017.
  4. The Centre for Parliamentary Research organizes the Parliamentary Practice of Legislation in Europe Workshop on the “Day of Parliamentarism” to be held in Budapest on May 2, 2017.
  5. The Council on International Law organizes a seminar on “Freedom of Religion in Europe: Achievements and Perspectives” to be held at the Human Rights Building in Strasbourg, France, on Friday 28 April, 2017
  6. The Centre for Constitutional Studies and University of Alberta, Faculty of Law invites proposals for the conference “Reconciliation:Wahkotowin” to be held on September 21-23, 2017, at the River Cree Resort just outside of Edmonton, Alberta, Canada.
  7. The South African Intellectual Property Law Journal calls for submissions for publication in the 2017 issue.
  8. The Italian law Journal Comparazione e diritto civile invites submissions to a special issue on “Who needs Comparative Law?”  The submission deadline is April 30, 2017.
  9. The Competition Law Scholars Forum (CLaSF) invites submissions to a workshop on “Constitutional Challenges in Europe – The impact and role of competition law” to be held on September 14, 2017 at the University of Amsterdam.

Elsewhere Online

  1. Thomas A. Barnico, Was James Comey a Special Prosecutor?, Notice & Comment
  2. Chaima Lahsini, Morocco’s Constitutional Court: How does it work?, Morocco World News
  3. Caroline Naomé, La pratique du pourvoi devant la CJUE [Video in French, Part 3], Le blog de de droit Européen
  4. Adeel Hussain, How Old is 14 Really On Child Marriage and Case-by-case Justice, Verfassungsblog
  5. Franziska Brachthäuser, No Compromises on Reproductive Rights – Why Ireland Need Constitutional Change, Verfassungsblog
  6. Editorial Board, The Supreme Court Weighs the Church-State Division, The New York Times
  7. Anna Olijnyk, Burns v Corbett: the latest word on State tribunals and judicial power, AUSPUBLAW
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Published on April 24, 2017
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Populist Constitutions – A Contradiction in Terms?

Jan-Werner Müller, Princeton University

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here. Professor Müller’s post is adapted from his book What is Populism? (Philadelphia: University of Pennsylvania Press, 2016) and from “Populism and Constitutionalism,” forthcoming in the Oxford Handbook of Populism.]

The meaning of “populism” is deeply contested.  It is striking, though, that many observers appear to agree on one point: whatever else it is, populism is inherently hostile to the mechanisms and, ultimately, the values commonly associated with constitutionalism: constraints on the will of the majority, checks and balances, protections for minorities, and even fundamental rights as such.  Populists are supposedly impatient with procedures; they are even said to be against “institutions” as such, preferring a direct, unmediated relationship between the personal leader and the people.  Connected with this supposed anti-institutionalism is the charge that populists dislike representation and opt instead for direct democracy (as exemplified by referenda).  Hence also the impression–widespread both among political philosophers and social scientists–that populism, despite some serious flaws, might under some circumstances serve as a “corrective” to a liberal democracy the has become too remote from the people.

This hope is misplaced.  But one can see how it arose, when one considers how the debate about constitutionalism and populism suffers from several unfortunate characteristics. First, the discussion often becomes conflated with the controversy about the merits of majoritarianism (and, conversely, judicial review). Second, there is no clear or even discernible distinction between popular constitutionalism on the one hand, and populist constitutionalism, on the other. And third and most importantly, “populism” frequently serves as a vague placeholder for “civic participation” or “social mobilization” (and, conversely, for weakening the power of judges and other elites).[1]  Quite apart from the vagueness of the notions used (or perhaps because of this vagueness), there’s the fact that debates about populism and constitutionalism–especially in the U.S.–quickly turn emotional, with accusations of elitism and “demophobia” flying about, and theorists accused of having bad “attitudes toward the political energy of ordinary people” or, alternatively, of promoting “ochlocracy.”[2]

However, populists are not generally “against institutions,” and they are not destined to self-destruct once in power, as a widespread view among liberals naively assumes.  They only oppose those institutions that, in their view, fail to produce the morally (as opposed to empirically) correct political outcomes.  Populists in power are fine with institutions–which is to say: their institutions.

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Published on April 23, 2017
Author:          Filed under: Analysis