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I·CONnect

Blog of the International Journal of Constitutional Law

Does Popular Participation in Constitution-Making Matter?

Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

I·CONnect has recently published a series of excellent essays on the constitution-making process that will soon begin in Chile. One element of the process that was mentioned by several of the authors was public participation. Indeed, public participation was a central element of the ultimately unsuccessful constitution-making process in Chile in 2015-2017. The fact that the current process of constitutional reform responds so directly to pressure from protest movements also suggests that participation outside the halls of the Constitutional Convention will be an important part of the 2021 constitution-drafting process. As anyone who has paid attention to constitution-making processes in the last several decades knows, Chile is far from an exception in this regard. Countries that vary on every political and social measure have incorporated participatory elements in processes of constitutional reform and replacement. Reflecting on these trends, Kirkby and Murray wrote that: “Today it is inconceivable that a government would attempt to draft a new constitution without at least a nominal commitment to a process in which the public is consulted.”[1]

One of the most interesting questions that all of this participatory activity raises is: to what extent does input from the public really influence the content of the constitution? To return to the Chilean example again, it is very likely that the drafters in the new Constitutional Convention will receive tens or even hundreds of thousands of submissions from the public in one form or another. What will they do with this material? How will they weigh it against other sources of information, or other avenues through which political demands are communicated? Beyond simple curiosity about what will transpire, these questions have immense normative importance.

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Published on November 25, 2020
Author:          Filed under: Analysis
 

What’s New in Public Law


Eman Muhammad Rashwan, Ph.D. Candidate in the European Doctorate in Law & Economics (EDLE), Hamburg University, Germany; Assistant Lecturer of Public Law, Cairo University, Egypt.


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The third Criminal Senate of the German Federal Court of Justice rejected the appeal of the Federal Prosecutor General against the lifting of an arrest warrant in the proceedings concerning the assassination of the former Kassel President of the Government, Dr. Walter Lübcke.
  2. The US Supreme Court has on Monday afternoon rejected a request from two inmates at high risk for complications from COVID-19 to reinstate an order by a federal district court that would require Texas prison officials to take basic safety precautions to combat the virus.
  3. The third Senate of the Federal German Court rejected the requests of a witness against his summons and presentation to a meeting of the 3rd Committee of Inquiry of the 19th parliamentary term of the German Bundestag (Wirecard Investigation Committee). The senate said that the measures complained of are lawful and not disproportionate, in particular with regard to the safeguard measures provided for.
  4. The US Supreme Court on Monday declined to reinstate a District Court order requiring Texas prison officials to enact basic safety precautions for the coronavirus.
  5. The Peruvian Constitutional Court has announced that it advances to the last Monday the session in which it will debate the demand for powers filed by former President Martín Vizcarra on the presidential vacancy, initially scheduled for Wednesday.
  6. The US Supreme Court agreed to hear land use case “Cedar Point Nursery v. Hassid” that will decide whether a temporary physical invasion of a property by the government makes the owner entitled to “just compensation.”

In the News

  1. The German Federal President has appointed Dr. Helmut Kreicker as a judge at the Federal Court of Justice.
  2. Mike Pompeo has announced the US will formally designate the Palestinian-led movement to boycott Israel as “antisemitic” and cut off government funding to any organizations linked to it.
  3. US President Donald Trump’s personal attorney Rudy Giuliani has joined a lawsuit battling the electoral process in Pennsylvania after multiple lawyers fled the case earlier this week. Mr. Giuliani said to the press that he was planning to “probably” sue in “at least eight or nine” additional states.
  4. The Egyptian Public Prosecution ordered the detention of a stand-up comedian whose jokes on the performance of some of the well-known “Holy Quran Radio” broadcasters went viral. The detention came after the National Media Authority filed a complaint against him, accusing him of disgracing the Islamic religion, threatening the Egyptian family values, defamation and insult the “Holy Quran Radio” broadcasters, and spreading content that can threaten the social peace and security.
  5. On November 18, the US President Donald Trump fired the Department of Homeland Security official who had rejected Trump’s claims of widespread voter fraud.
  6. In Somalia, the controversy surrounding the selection of Somaliland’s electoral committee members continues to escalate, with Senate Speaker Abdi Hashi now calling for intervention by the United Nations and the African Union, in the latest twist which could derail implementation of the pre-election deal within Somalia.

New Scholarship

  1. Michaël Lessard, A Dynamic Judicial Approach to Diachronic Legislative Integrity (2020) 33 Canadian Journal of Law & Jurisprudence 2 (arguing that realistic respect for diachronic legislative integrity should account for the dynamism of legislative activity)
  2. Susan Benesch, But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies, Yale Journal on Regulation Bulletin 38 (2020) (examining the potential application of human rights law to social media companies)
  3. Morten Bergsmo and Viviane E. Dittrich (eds.), Integrity in International Justice (2020) (examining the role of international organizations and states as well as international courts in enhancing integrity in international justice)
  4. George Mészáros, Caught in an Authoritarian Trap of its Own Making? Brazil’s ‘Lava Jato’ Anti‐Corruption Investigation and the Politics of Prosecutorial Overreach (2020) 47 Journal of Law (examining Brazil’s ‘Car Wash’ corruption scandal from a legal and political perspective, and arguing that despite its relative success, due process, systemic constitutional law, and the political process were undermined)
  5. David L. Hudson Jr., Justice Sonia Sotomayor: The Court’s Premier Defender of the Fourth Amendment (2020) 44 Seattle University Law Review 1 (positing that Justice Sonia Sotomayor is the US Supreme Court’s chief defender of the Fourth Amendment and the cherished values it protects)
  6. Ashley Deeks, Will Cyber Autonomy Undercut Democratic Accountability? (2020) 96 International Law Studies (exploring how the use of autonomous cyber capabilities may alter the current state of legislative oversight and internal executive decision making about sensitive cyber operations)
  7. Mike Norton and Richard H. Pildes, How Outside Money Makes Governing More Difficult (forthcoming 2020) Election Law Journal (assessing how the rise of contributions from organizations outside the political parties in the USA affects the unity or disunity of the party caucus in the legislature)
  8. Matteo Mastracci, Judiciary Saga in Poland: an Affair Torn Between European Standards and ECtHR Criteria (2020) 9 Polish Review of International and European Law 2 (testing the legitimacy of the reshuffle plan of the judiciary in Poland against the present-day European regulatory framework and the relevant case-law of the ECHR)

Calls for Papers and Announcements

  1. Centre for Constitutional Studies, Canada, organizes the 31st Annual McDonald Lecture in Constitutional Studies on the separation of powers, the critical challenges it faces in light of nationalist populism and partisan polarization, and the future of liberal democracies in a changing political landscape. The webinar will be held online on November 27, 2020, at 12:00 pm – 2:00 pm MST.
  2. An international interdisciplinary symposium entitled “Human Rights in Pandemic Times Political Exceptionalism, Social Vulnerability & Restricted Freedom” will be held online on September 6-7, 2021, in Brussels. Several professors from the Center for Public law of the Université Libre de Bruxelles (CDP/ULB), the Interdisciplinary Research Center for Constitutional and Administrative Law of the Université Saint-Louis – Bruxelles (CIRC/USL), the Centre for Research on the State and the Constitution of the Université Catholique de Louvain (CRECO/UCLouvain), the Research Centre in Information, Law and Society of the Université de Namur, the Law Faculties of the Université de Liège and the Université de Luxembourg, are collectively organizing the conference. Proposals should be sent, in French or English, by December 15, 2020, to Ms. Camille Lanssens: camille.lanssens@ulb.be.
  3. The second week of the IACL Global Roundtable webinar series ‘Democracy 2020: Assessing Constitutional Decay, Breakdown, and Renewal’ takes place on 24, 25 and 26 November (Melbourne time; for the Americas it is 23, 24 and 25 November). Webinars 5-9 focus on regional overviews of democracy in Asia and Europe, country spotlights (India & Sri Lanka, and Poland & Hungary), and a final session on democratic renewal worldwide. You can find the blog posts for the sessions at www.iacl-democracy-2020.org/blog, programme here and register here.
  4. The University of Detroit Mercy invites applications and nominations for the position of dean of the School of Law. Application materials should be submitted using WittKieffer’s candidate portal here.
  5. The XXVI Colloquium of the Italian Association of Comparative Law on the subject Comparative Law in Times of Emergencies will be held next May 20-22, 2021, at the University of Bologna. To participate, an abstract should be submitted by January 7, 2021, emailing to aidc.bologna2021@gmail.com.  
  6. SCOTUSblog and Goldstein & Russell, P.C. are seeking to hire a full-time employee to serve as firm manager for Goldstein & Russell, P.C., and deputy manager of SCOTUSblog. The application deadline is November 25, 2020.
  7. The International Centre of Transitional Justice (ICTJ) invites applications for its online course on “Prevention and Guarantees of Non-Recurrence: The Role of Transitional Justice.” The course will take place on February 1-5, 2021. Complete course information can be found here. The deadline for applications is Monday, January 11, 2021.
  8. V-Dem Institute (Varieties of Democracy) is looking for country experts for Eswatini, Guinea, Guinea-Bassau, Haiti, Hong Kong, Mali, Mauritania, Sao Tome & Principe, Seychelles, South Sudan. Read the details and apply here.
  9. The European Doctorate in Law and Economics (EDLE) invites applications. The students rotate between universities of Bologna, Hamburg, Rotterdam, and Rennes, getting a Ph.D. diploma from each university around six scholarships available.
  10. The International Development Law Organization (IDLO) invites applications for the position of a Research and Learning Manager. The deadline for applications is November 22, 2020.

Elsewhere Online

  1. Elliot Bulmer, A Scottish constitution: should it be devised before or after independence?, The Constitution Unit
  2. Linda Greenhouse, Four Years of the Trump Administration in Court. One Word Stuck in My Head., The New York Times
  3. Mathias Chauchat, Les résultats du 4 octobre 2020 sur la pleine souveraineté de la Nouvelle-Calédonie projettent une société divisée dans « le jour d’après », IACL-AIDC Blog
  4. Adam Feldman, Empirical SCOTUS: How the court’s decisions have limited the national electorate, SCOTUSblog
  5. Liz Fisher, Should Administrative Law Scholars Be More Like Botanists?, Administrative Law in the Common Law World
  6. Richard Danbury, The BBC and Henry VIII’s Heirs, Verfassungsblog
  7. Daron Acemoglu, Trump Won’t Be the Last American Populist, Foreign Affairs
  8. Mark Mancini, Neutrality in Legal Interpretation, Double Aspect
  9. Brendan Murphy, Law enforcement’s excessive use of force is a public health issue, AMA
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Published on November 23, 2020
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Call for Papers — Quaderni costituzionali — “The Environmental Protection in the Constitution”


 “Quaderni costituzionali” – Italian Journal of constitutional law invites submission for the 13th edition of the competition – Call for articles on “The environmental protection in the Constitution”

The instance of environmental protection, in its multiple declinations, is the object of several norms and legal commitments of European and international law. These tools find in the prevalence of values of economic nature and in the application of questionable scientific evidences significant obstacles to their enforcement. With this regard, it appears appropriate to question whether the Italian Constitution still has an autonomous role to play or, instead, is to be considered outdated when it comes to the protection of the environment. Therefore, in their articles the applicants are asked to take a position on the following interpretative hypotheses.

1. Is the Italian Constitution irremediably affected by an anthropocentric paradigm (likewise by other cultural traits dominant at the time when it was drafted) that prevents an autonomous and fully-fledged consideration of the theme of the “nature” – like the textual reference to “landscape” (Art. 9 Const.) and to the “social utility” (Art. 41, 2nd para. Const.) may appear to hint at?

2. Can the text of the Italian Constitution be profitably amended for what concerns the protection of the environment as to guarantee the specific balance between the values enshrined in this fundamental Charter, where such a balance is to be preferred to that ensured at the supranational and international levels?

3. Can the Italian Constitution, as it stands, be invoked as the ground for the adoption of a series of general, more incisive or, in any event, different measures compared to those in force?

The applicants can then answer to one or more of the following questions:

a) what is the most appropriate configuration of the value of the “environment”, from a constitutional law perspective, once it is made autonomous from the health protection? Starting from Art. 2 Const., the value of the “environment” can be understood from a fundamental right perspective, e.g. the right to a good quality of life, rights of the future generations; by contrast, the health case protection can be analysed in terms of the duties of solidarity, e.g. towards the citizens, the other inhabitants on the earth, the future generations, the ecosystem and the other living beings.

b) What is the legal regime to be referred to the environment and to its many components? In particular, whether it is sufficient to place the environment amongst the public economic assets foreseen by Art. 42 Const. (save for the need to rediscover its authentic meaning, almost overwhelmed by the processes of economization and of privatization) or whether, instead, a new and more appropriate positioning can be envisaged for the environment as to enhance at the same time the right to everyone to its enjoyment and the individual duty to preserve it.

c) According to the Constitution, can the management and the protection of environmental goods be assigned to NGOs and to local communities – as it is already the case for the so-called “collective domains” – or is it preferable to resort to the shared management grounded in a “pact” between the territorial entity and the citizens(Art. 118, last para. Const.), a practice already followed at local level?

The manuscript must comply with the editorial guidelines of the Journal available under the section “Informazioni per i collaboratori” of each issue, must be written in Italian, cannot exceed 80.000 characters (spaces and footnotes included) and shall be submitted to the Editorial Committee by 15 January 2020 by sending the relevant file to Chiara Bologna (quadernicostituzionali@mulino.it). The manuscripts received will be subject to blind peer review by a selection panel composed of members of the Board of Directors and of the Editorial Committee. Besides the publication of the article on the Journal, the winner of the competition will be awarded as a prize a free subscription to the Journal for five years. In addition to the article selected for the prize, other articles can be considered by the panel to deserve publication on the Journal “Quaderni costituzionali”.

The text of the call for articles, in Italian, is available here: http://www.forumcostituzionale.it/wordpress/wp-content/uploads/2020/02/ambiente-concorso.pdf

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Published on November 22, 2020
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Hungary has sped up in its sliding down the slope towards authoritarianism: the proposed Ninth Amendment and accompanying laws

Tímea Drinóczi, Department of Constitutional Law, Faculty of Law, University of Pécs, Hungary

On 10 November 2020, the Hungarian government submitted the Ninth Amendment to the Fundamental Law (FL) and some other laws to the parliament. These amendments have a great potential to increase the degree of exclusion affecting “others” – that can be the members of LGBTQI+ and the opposition. These amendments underscore the illiberal nature of the Hungarian regime and illustrate how this country has just sped up its authoritarianization process. During the pandemic, the nature of illiberal constitutionalism has also revealed itself: it does not do what you would expect. The most ostentatious rules are not introduced by emergency governmental decrees but have been subjects to normal-times processes in the parliament even during the constitutional emergency.

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Published on November 21, 2020
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Acting (or Not Acting) on (Lawful or Unlawful) Advice in Malaysia: From Windsor to Kuantan and Back Again

Andrew Harding, Centre for Asian Legal Studies, Faculty of Law, National University of Singapore

As has been previously noted in this blog, Malaysia has been undergoing an unprecedented period of political instability that has tested the interpretation and implementation of many constitutional provisions, especially those relating to the appointment and dismissal of governments.[1] In this process party discipline and coalition discipline appear to have broken down to a considerable extent, and this fluidity in allegiance (to, or even by, political parties) entered a new phase on 23 September 2020 when opposition leader Anwar Ibrahim claimed to have the support of a majority of MPs to trigger a second change of government this year.[2] This political drama continues during a pandemic, and therefore unusual considerations come into play: a state election in Sabah on 26 September 2020 resulted in a large spike of COVID-19 infections in that state.[3] Holding a federal election at such a juncture is widely seen as a dangerous move, and if the government does fall, an election might be the outcome, if a dissolution were requested by Prime Minister and acceded to by the head of state, the Yang di-Pertuan Agong.[4]

Given the potential for further instability and a change of government at what is widely seen as an inopportune moment, the Prime Minister, following a Cabinet meeting on 23 October 2020, made his way to Kuantan in the state of Pahang, where the Yang di-Pertuan Agong, as Ruler of Pahang, was residing at his palace, to request a proclamation of emergency on the ground of a need to maintain stability and confidence in the government while the continuing pandemic was being addressed.[5] Under the Federal Constitution, Article 150, an emergency may be proclaimed in the following circumstances:

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Published on November 20, 2020
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Black theories matter in achieving a real democracy in Brazil: reflections celebrating the National Black Consciousness Day

Manuellita Hermes, PhD. Candidate at Università degli Studi di Roma II, Tor Vergata; Rômulo Bittencourt, Master Student of the Graduate-Level Program in Literature and Culture of the Universidade Federal da Bahia.

Next November 20th is the National Black Consciousness Day (Dia da Consciência Negra) in Brazil. Specially in 2020, the resurgence of a racial debate in Brazil and in the world, fallowing the cases of João Pedro and George Floyd, following suit with the “black lives matter” campaign, revealed the need to bring space and visibility to black intellectuals. Their theories also matter.

It is important to abandon the state of denial of our colonial history, the slavery heritage and its current lasting consequences, with effective actions and discourse for another inclusion, a truly transformative one.

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Published on November 19, 2020
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The Colombian Model of Judicial Review of Legislation: A Predecessor to the Austrian Constitutional Court of 1920

Mario Alberto Cajas Sarria, Universidad Icesi, Colombia[1]

It is 100 years since the creation of the Austrian Constitutional Court (October, 1920), which gave rise to the “Austrian Model” of judicial review of a concentrated and specialized Constitutional Court,[2] that spread across Europe with its adaptations and migrated to other continents[3].

On this Centenary, it is also worth remembering an institutional experience much less known in comparative law, but which actually predated the Austrian model. This is the judicial review of legislation exercised by the Supreme Court of Colombia since  Legislative Act 03 of 1910. The constitutional amendment established the Public Action of Unconstitutionality (actio popularis) and assigned the Court jurisdiction to determine the constitutionality of laws and decrees upon being challenged by any citizen. Thus, the Supreme Court, which was a Court of Cassation and the highest judicial body in Colombia, acquired the functions of a “Constitutional Court” (CC) before the distinguished legal scholar Hans Kelsen created the Austrian model.

The Public Action of Unconstitutionality (PAU) emerged at a critical juncture in the political regime. The Conservative government of General Rafael Reyes (1904-1909) came into tension with Congress and decided to close it in 1905. In reaction to the dictatorship, a faction of the Conservative Party and the Liberal Party formed the Republican Union. Forced by the opposition, Reyes reopened the Congress in 1909. Republicans won a majority in the House of Representatives, although the Senate remained favorable to the government. After the president resigned and left the country, the Union consolidated its triumph: it achieved the call for a National Constituent Assembly and won the majority in it. The republican ideology sought to restore limits to political power and passed the constitutional amendment of 1910. With the PAU, the Supreme Court became the “guardian of the Constitution.”[4]  

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Published on November 19, 2020
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The Institutional Interest of Political Parties in Chile’s Constitution-Making Process

Benjamin Alemparte, Duke University School of Law

These are times of constitutional change in Chile.[1] On October 25, the referendum’s approval option for drafting a new Constitution won with close to 80% of the general vote, the most significant electoral gap in the country’s history. Notably, more than 50% of the registered electorate went to vote, resulting in the highest turnout since the return to democracy in 1990. The Chilean people voted for a fully democratic elected constituent convention of 155 members to be chosen in April with the only task of writing a new Constitution. It will also be the first of its kind gender-balanced convention, and efforts have been made to include independent candidates and other historically marginalized groups. Currently, Congress is discussing reserving seats in the convention for the indigenous population. This is not trivial; Chile and Uruguay are the only Latin-American countries not constitutionally recognizing their indigenous peoples.

But how did we get here? Although the replacement of Chile’s 1980 Constitution enacted under the Pinochet dictatorship (1973-1990) has been a historical project of the left, it is only in recent years that the idea of a new Constitution became a possible reality. This article examines the changing institutional dynamics that have governed Chile’s recent constitution-making process. As Karl Loewenstein would note, a political regime’s character can be deduced from how institutional actors apply different constitutional reform techniques.[2] In this context, constituent conventions, like the one to be elected in Chile, commonly have an external creator that introduces different types of procedural and substantive constraints before starting to deliberate. Jon Elster referred to the concept of institutional interest, which exists when an institutional actor participating in the design of a constitution-making process reserves for itself an important role within the process and eventually in the new Constitution.[3] Thus, for instance, a process designed predominantly by the President would promote a stronger presidency, or one led by Congress would privilege its role over the President. Similarly, political parties would have a primary interest in the constitutionalization of electoral legislation and the government machinery. In what follows, I will review these ideas considering the recent Chilean experience.

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Published on November 17, 2020
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What’s New in Public Law


Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest.


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of Canada ruled Hydro-Québec has the right to construct an electric-power transmission line along an existing corridor despite the objections of landowners.
  2. The First US Circuit Court of Appeals in Boston upheld a ruling clearing Harvard University of discrimination against Asian American applicants.
  3. The U.K. Supreme Court will hear a significant LGBTQ rights case, which could force the country to adopt the internationally recognised non-gendered ‘X’ option.
  4. A leader of the Narc Kenya Party, Martha Karua moved to the High Court challenging the decision by Judicial Service Commission to dismiss her complaint against Justice Lucy Gitari.
  5. The High Court in Nairobi ruled against a ban on public gatherings in a petition filed by the Law Society of Kenya (LSK) under the certificate of urgency, citing the ban as a contravention of the freedom to associate enshrined in the Constitution of Kenya 2010.
  6. The Supreme Court of the United States Supreme Court ordered election officials in Pennsylvania to keep the late-arriving ballots separate from other ballots, and not to include them, for now, in announced vote totals.

In the News

  1. The Government of Hungary proposed a constitutional amendment requiring children to be raised with a Christian interpretation of gender roles, as Prime Minister Viktor Orban’s ruling nationalists turn to anti-LGBT rhetoric to shore up support.
  2. The Federal High Court in Abuja granted permission to a petitioner to pursue a suit against the President, over his refusal to appoint all the 33 nominees recommended to him by the National Judicial Council as judges of the High Court of the Federal Capital Territory, Abuja.
  3. Peru’s Congress voted to impeach and oust President Martin Vizcarra over allegations he took kickbacks from developers while serving as a regional governor in 2014.
  4. Turkey’s ruling Justice and Development Party proposed changes to electoral law to suit better the presidential system which critical changes that range from determining a new electoral threshold and limiting deputies’ ability to shift parties.
  5. Guyana’s Attorney General and Minister of Legal Affairs, Hon. Mohabir Anil Nandlall outlined that the Government intended to keep its manifesto promise on constitutional reform and commence the process with discussions in the National Assembly. 
  6. The High Court of Justice of Israel heard arguments made by petitioners against the coalition agreement between Prime Minister Benjamin Netanyahu and Defense Minister Benny Gantz and the changes made to the country’s quasi-constitutional Basic Laws in order to implement the deal.

New Scholarship

  1. Ryan Doerfler and Samuel Moyn, Democratizing the Supreme Court, California Law Review, forthcoming 2020 (arguing that the debate over reform of the Supreme Court of the United States should abandon its framing around notions of legitimacy, and distinguishing between personnel reforms like court-packing and disempowering reforms like jurisdiction stripping and a supermajority requirement for judicial review).
  2. Uvin Dissanayake, Technocratic, Populism and the Pandemic State: Performative Governance in Post-COVID Sri Lanka, Centre for Policy Alternatives Discussion Paper, 2020 (examining how the Sri Lankan Government has been able to employ a counterintuitive and underexamined type of populist rhetoric, that of technocratic populism).
  3. Alan Greene, Emergency Powers in a Time of Pandemic (2020) (examining how human rights, democracy and the rule of law can be protected during a pandemic and how emergency powers can best be ended once it wanes).
  4. Jackie Dugard, Bruce Porter, Daniela Ikawa and Lilian Chenwi (eds.), Research Handbook on Economic, Social and Cultural Rights as Human Right (2020) (combining practitioner and academic perspectives to provide a comprehensive, cutting edge analysis of economic, social and cultural rights (ESCR), as well as the connection between ESCR and other rights).
  5. Farah Peterson, Expounding the Constitution 130(1) Yale Law Journal (2020) (arguing that during the framing and ratification of the US Constitution, many of the Founders thought the Constitution would be interpreted according to the rules applicable to public legislation).
  6. Michael J. Klarman, The Degradation of American Democracy — And the Court – Foreword 134(1) Harvard Law Review 1 (2020) (discussing ways in which the US Supreme Court has contributed to the degradation of US democracy, offering some causes for the phenomenon, and possible ways forward). A podcast episode discussing this work can be found here.
  7. Tara Leigh Grove, Which Textualism? 134 Harvard Law Review 265 (2020) (arguing that the battle between textualism and purposivism has caused scholars to overlook a key and consequential division within textualism).

Calls for Papers and Announcements

  1. The Konrad Adenauer Stiftung and the Korea University School of Law host a roundtable on Covid-19 and Constitution with experts drawn from Korea and Germany.
  2. The British Association of Comparative Law (BACL) invited submissions for its blog on the theme “The regulation of fake news and its enforcement”.
  3. The Petrie-Flom Center at Harvard announced an online event on Enforcing Constitutional Commitments to Health and Social Equality in Kenya: A Conversation with Justice Mumbi Ngugi.
  4. The Indian Journal of Constitutional Law announced a call for papers for Vol. X of the Journal, to be published in 2021.
  5. King’s College, London hosts an online event on Ecocide in a Pandemic: Laws of Exposure and Encounter in the Anthropocene.
  6. The Institute for International Law and the Humanities together with the Australian Human Rights Institute host Beijing Platform for Action at 25: Progress, Retreat and the Future of Women’s Rights.
  7. The Institute of Advanced Legal Studies announced the Call for Proposals from potential Academic Directors of the 2022 WG Hart Workshop. The deadline for proposals is January 31, 2021.
  8. The Laureate Program in Comparative Constitutional Law (Melbourne Law School) and the Melbourne School of Government host the IACL-AIDC Global Roundtable on ‘Democracy 2020: Assessing Constitutional Decay, Breakdown, and Renewal Worldwide’.
  9. Penn State Dickinson Law invites applications from entry-level and lateral candidates for tenure-track and tenured faculty positions expected to begin July 1, 2021.
  10. Emory University School of Law sought applications for the John Lewis Chair for Civil Rights and Social Justice, beginning in the 2021-2022 academic year.

Elsewhere Online

  1. Rosalind Dixon, Towards a viable constitutional transformation in Chile?, EmolTV
  2. Ciarán Burke, An Irish Tale of Judicial Misconduct Or: How Not to go for Dinner after a Round of Golf, Verfassungsblog
  3. Katharine Jackson, What Makes An Administrative Agency “Democratic”?, LPE Blog
  4. Kim Lane Scheppele, What Happens Next? The Trials, the Transition and the Tinderbox, Verfassungsblog
  5. Cristina Guevara, ¡Basta Ya! How pandemic-related corruption calls for a new social contract in Panama, Atlantic Council
  6. Viktor Z. Kazai, Power Grab in Times of Emergency, Verfassungsblog
  7. Linda Greenhouse, The Supreme Court Is Now 6-3. What Does That Mean?, New York Times
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Published on November 16, 2020
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Constitutionalism and Multi-Level Governance: Ran Hirschl on Megacities in Constitutional Democracies

Estefânia Maria de Queiroz Barboza, Federal University of Paraná, and Lucas Henrique Muniz da Conceição, Birkbeck College, University of London

On October 30, the Brazilian Chapter of the ICON-S promoted an international conference on the theme of Megacities and Constitutional Law. Presenting his novel academic contribution Prof. Ran Hirschl provided a keynote address regarding his perspective on the necessary changes in constitutional theory and political discourse concerning the rising of megacities, both in the global south and north.[1] To change the classical public law focus from the state to the new arrangements of megacities offers a new paradigm for the role of constitutionalism and its relationship to promoting human rights at different possible levels of governance.

The topic is particularly impressive considering the Brazilian predicament of urbanization and the demise of democratic figures in our political landscape. There is a perceived democratic erosion and rise of conservative and even authoritarian regimes globally. Separatist movements, anti-refugees, and anti-human rights discourses have become prevalent all around the world. Prof. Hirschl’s new book City, State argues that the sub representation of urban people in the National Congress gives conservatives an advantage in the political process. In Brazil, the example of São Paulo in the Federal Senate (upper house in Brazilian National Congress) is an example: each senator of this state represents 15 million people, while in Roraima, a state in the North of Brazil, a senator represents 170,000 voters. This underrepresentation also occurs in the House of Representatives (lower house), as the proportional representation is limited by a minimum of eight and a maximum of seventy deputies from each state, hindering an accurate proportional system of representation for the states that harbor large urban centers[2].

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Published on November 15, 2020
Author:          Filed under: Analysis