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I·CONnect

Blog of the International Journal of Constitutional Law

International Assistance to Constitution Making between Principle and Expediency

Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In the aftermath of the Cold War many countries underwent political transitions coupled with extensive constitutional changes. Constitution making has also increasingly become a tool for post-conflict peace building. While the phenomenon of international constitutional advisors assisting in constitution making processes is not a particularly recent one,[1] since the early 1990s it has become more frequent and progressively systematized into explicit policy frameworks. The exercise of constitution making, however, presents international organisations with a conundrum when offering expert assistance in the form of constitutional advice.

On the one hand, there is widespread agreement among scholars and international organizations alike that constitutions need to be made according to, and embody in their content, a variety of global norms pertaining to participation, transparency, democracy, fundamental rights, rule of law, international law compliance, and so on. Indeed, a minor cottage industry has arisen around giving countries constitution-making advice along these lines.[2]

On the other hand, a constitution is considered to be legitimate on the ground that it expresses the will of the collective “We the People.” Thus, in order to be legitimate, the constitution should be autochthonous and nationally owned, meaning that it should be local in origin and content: it should express the character, history, and identity of the distinctive community or collective ‘We’ that claims the right to govern itself independent of other communities. It is thus common for constitutions to articulate some kind of national identity, and to define the community responsible for adopting the constitution.[3]

The result is a tension between “constitutional autochthony” and “constitutional borrowing” that manifests itself throughout the standard advice given by scholars, consultants, and international organisations on how constitutions should be written. This tension is exemplified by the Guidance Note of the Secretary-General on United Nations Constitutional Assistance first issued in April 2009 and subsequently revised in September 2020.[4]

The UN Guidance Note merits attention because it illuminates the practical difficulties that modern constitution-making processes face in attempting both to comply with international legal standards and to secure the acceptance of domestic actors. It also shapes the policy frameworks of other UN agencies in matters of constitutional assistance. The 2009 version identifies six principles that should guide international engagement in constitution making:

(1) Seize the opportunity for peace building

(2) Encourage compliance with international norms and standards

(3) Ensure national ownership

(4) Support inclusivity, participation and transparency

(5) Mobilize and coordinate a wide range of expertise

(6) Promote adequate follow-up

There is considerable tension, if not contradiction, between points (2) and (3), which remain unchanged in the 2020 version. While the UN is supposed to encourage new constitutions to adhere to international human rights instruments, it should also ensure that the constitution-making process is nationally owned in order to avoid the impression that the constitution is “imposed” by foreign actors.

The difficulty is in striking the right balance between a nationally-owned process and a legal outcome that is sound in terms of both institutional design and compliance with international standards. The recent experiences of UN-supported constitution-making processes suggest that national ownership tends in practice to take priority, even at the cost of non-compliance with international human rights standards.

Nepal’s most recent constitution-making experience (2008-15) is a case in point. The current 2015 constitution re-introduced citizenship provisions that discriminate on the basis of gender granting Nepali women less rights than Nepali men to transmit citizenship to their children and foreign spouses. The new constitution’s citizenship chapter is in clear contravention of CEDAW and other international human rights instruments to which Nepal is a signatory. Unsurprisingly, the issue of citizenship took centre stage at Nepal’s periodic review before the United Nations’ Human Rights Council in 2015,[5] and the CEDAW Committee in 2018.[6] However, no amendments to the constitution with respect to citizenship have been introduced.

The question of citizenship in Nepal represents a clear instance of divergence from global constitutional practice and international human rights standards, which can only be explained in light of Nepali political elites’ concerns with nation building and the preservation of existing social hierarchies. This is not to say that Nepal is unique or alone in discriminating against women in this area of law, but it is significant that such a recent UN-supported constitution-making process that took nine years has produced in the end a constitution so clearly in breach of international legal standards such as CEDAW and ICCPR.

As the revised 2020 Guidance Note clearly states “the UN […] has a Charter mandate to promote respect for and observance of international norms and standards.” It thus seems imprudent for the UN agencies involved in constitutional assistance to prioritise political expediency over international law compliance, only to leave other parts of the UN system to attempt to remedy such breaches after the constitution has come into force, which is a much more arduous task.[7]

Suggested citation: Mara Malagodi, International Assistance to Constitution Making between Principle and Expediency, Int’l J. Const. L. Blog, Jan. 13, 2021, at: http://www.iconnectblog.com/2020/01/international-assistance-to-constitution-making-between-principle-and-expediency/


[1] See Mara Malagodi, ‘Ivor Jennings’ Constitutional Legacy beyond the Occidental-Oriental Divide’ (2015) 42:1 Journal of Law and Society 102; Symposium Issue: New Dominion Constitutionalism (2019) 17:4 International Journal of Constitutional Law 1166-1300; Coel Kirkby, ‘Commonwealth Constitution-Maker: The Life of Yash Ghai’ in S. Dubow and R. Drayton (eds.) Commonwealth History in the Twenty-First Century 61 (Palgrave).

[2] Tom Ginsburg, ‘Constitutional Advice and Transnational Legal Orders’ (2017) 2 UC Irvine Journal of International, Transnational, and Comparative Law 5. 

[3] Tom Ginsburg et al., ‘We the Peoples: The Global Origins of Constitutional Preambles’ (2014) 46 George Washington International Law Review 101; Chaihark Hahm and Sung Ho Kim, ‘To Make “We the People”: Constitutional Founding in Postwar Japan and South Korea’ (2010) 8 International Journal of Constitutional Law 800.

[4] See Guidance Note of the Secretary-General: United Nations Assistance to Constitution-making Processes (Apr. 2009), at https://www.un.org/ruleoflaw/blog/document/guidance-note-of-the-secretary-general-united-nations-assistance-to-constitution-making-processes; Guidance Note of the Secretary-General on United Nations Constitutional Assistance (Sept. 2020), at  https://peacemaker.un.org/sites/peacemaker.un.org/files/SG%20Guidance%20Note%20on%20Constitutional%20Assistance_2.pdf. See also United Nations Development Programme, ‘Guidance Note on Constitution-Making Support’ (5 February 2015), at www.undp.org/content/undp/en/home/librarypage/democratic-governance/parliamentary_development/GuidanceNote_ConstitutionMakingSupport.html (reiterating the same formula.)

[5] See United Nations General Assembly, ‘Report of the Working Group on the Universal Periodic Review: Nepal’, Human Rights Council thirty-first session, 23 December 2015, available at www.upr-info.org/sites/default/files/document/nepal/session_23_-_november_2015/a_hrc_31_9_e.pdf.

[6] See Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the sixth periodic report of Nepal’, 14 November 2018, available at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fNPL%2fCO%2f6&Lang=en.

[7] A more detailed analysis is available in my forthcoming chapter ‘Constitutional history and constitutional migration: Nepal’ in the volume Constitutionalism in Context edited by David Law for Cambridge University Press.

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Published on January 13, 2021
Author:          Filed under: Analysis
 

What’s New in Public Law


Chiara Graziani, Research Fellow in Comparative Public Law, University of Milan-Bicocca (Italy) and Academic Fellow, Bocconi University (Italy)


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 Constitutional Court of Ukraine issued a statement on the presidential decree suspending the Chairperson from judicial office.
  2. The Turkish Constitutional Court ruled on the violation of the right to liberty and security of a journalist arrested after the 2016 failed coup d’état.
  3. The US Supreme Court denied a bid by a Republican congressman to reverse President Donald Trump’s election defeat.
  4. The Alaska Supreme Court will hear a challenge against elections in a state House.
  5. The Supreme Court of Pakistan ordered the government to rebuild a historical Hindu temple that was vandalized and destroyed.

In the News

  1. The joint session of the US Congress certifying Joe Biden’s win was suspended and forced into recess, since violent supporters of President Donald Trump breached the Capitol Hill?.
  2. US Congressional democrats called for immediate impeachment of President Donald Trump.
  3. A new piece of legislation was adopted in the US bringing significant changes in the anti-money laundering regime.
  4. The UN Security Council adopted a new resolution encouraging states to engage more actively in the fight against terrorism.
  5. The EU Commission presented a comprehensive reform setting new rules for digital platforms.

New Scholarship

  1. Simon Chesterman, Artificial Intelligence and the Limits of Legal Personality (2020) International and Comparative Law Quarterly (investigating whether AI systems should be entrusted a status comparable to natural persons)
  2. Tom Ginsburg and Mila Versteeg, The Bound Executive: Emergency Powers During the Pandemic (2020) (arguing that, during the Covid-19 pandemic, domestic executives have not been totally unbound, but courts and legislatures played a significant role in constraining them)
  3. Laurence R. Helfer, Rethinking Derogations from Human Rights Treaties (2021 forthcoming) American Journal of International Law (critically assessing the existing system of human rights treaty derogations and how it has worked in times of Covid-19)
  4. Romain Mertens, Freedom of religion and freedom of demonstration during the Covid-19 Pandemic: a comparative analysis of administrative case law in France and Belgium (2020) Ius Publicum Network Review (examining measures aimed at curbing the Covid-19 pandemic that impact on freedom of religion and of demonstration with a specific focus on Belgium and France)
  5. Alexander Tsesis, Free Speech in the Balance (2020) (providing a comprehensive study of proportional analysis in free speech cases)

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism is launching ConstitutionWorld, a resource to connect scholars of constitutions and constitutionalism all around the world. Scholars of all levels of seniority are welcome to join.
  2. The Graduate Law Students Association of the McGill’s University Law Faculty announced a call for papers on “Law and Cities.” Abstracts are due by January 31, 2021.
  3. The University of Miami will hold a conference on the theme “We Robot 2021.” The deadline for paper proposals is February 1, 2021.
  4. The University of St. Thomas School of Law invites submissions to the Journal of Law and Public Policy for an upcoming Virtual Symposium on “Alternate Realities, Conspiracy Theory, and the Constitutional and Democratic Order.” Proposals are due by February 28, 2021.
  5. The South African Society for Critical Theory invites contributions to a special issue of Acta Academica on “Pandemic Politics.” The deadline to submit papers is February 28, 2021.
  6. The Forced Migration Review launched a call for papers on “Non-signatory States and the international refugee regime.” The deadline for submissions is March 15, 2021.

Elsewhere Online

  1. Richard Avinesh Wagenländer, An Order of Deferential Monism: Why the Bundesverfassungsgericht’s PSPP Ruling Merely Restates the Limits of the EU Legal System, European Law Blog
  2. Mark Elliott, The UK-EU Brexit Agreements and ‘Sovereignty’: Having One’s Cake and Eating It?, Public Law for Everyone
  3. Jeff King, The Prime Minister’s Constitutional Options after the Benn Act: Part II, UKCLA Blog
  4. Robert Liao, Local citizens’ assemblies in the UK: an early report card, The Constitution Unit
  5. Kim Lane Scheppele, Insurrection, Verfassungsblog
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Published on January 11, 2021
Author:          Filed under: Developments
 

The Afghan Peace Process and the Prospects for Constitutional Change: Can Incrementalism Work?


Shamshad Pasarlay and Ilaria Vianello


On 12 September 2020, representatives from the Afghan government and the Taliban held the first ever direct talks in Doha, Qatar, to negotiate an end to the Afghan conflict. On 15 December 2020, some media outlets published a list of questions both sides wished to discuss during the talks. An “Islamic system of government” and changes to the country’s constitutional order are at the top of the Taliban’s agenda whereas a comprehensive ceasefire is at the heart of the Afghan government’s wish-list. The Afghan government is willing to consider amendments to the 2004 Constitution, but at this initial stage it has been disinclined to discuss constitutional changes. Although both sides have shown different preferences, any long-term solution will require significant constitutional reform.

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Published on January 8, 2021
Author:          Filed under: Analysis
 

Special Announcement: ICONnect Columnists for 2021

David Landau, Florida State University College of Law

The editors of ICONnect are very pleased to announce our new slate of columnists for 2021: Mara Malagodi, Berihun Adugna Gebeye, Armi Bayot, and Juliano Zaiden Benvindo. As always, we are confident that they will provide a diverse and fascinating set of voices for our readers, representing a range of regional and substantive areas of focus.

We would also like to give thanks and express appreciation for our outgoing 2020 columnists — Sofia Ranchordas, Alexander Hudson, Yvonne Tew, and Andrea Scoseria Katz. We are grateful to each of these wonderful scholars for agreeing to serve as columnists last year, and we think you will agree that they added an extraordinary amount to the blog.

The format of the columns is the same as in previous years. The goal is to provide ICONnect with regular contributors who have a distinctive voice and unique perspective on public law. 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. Each columnist will produce one column every two months.

Although we expect that many of our readers already know their work, we append brief bios for each of our new columnists below. Please join us in welcoming them to ICONnect!

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Published on January 7, 2021
Author:          Filed under: Editorials
 

What’s New in Public Law


Simon Drugda, PhD Candidate at the University of Copenhagen


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 Constitutional Court of Zimbabwe ruled that the country’s national pledge was an unconstitutional violation of school children’s right to freedom of conscience and parental rights.
  2. The Supreme Court of Venezuela invalidated a motion by the National Assembly to extend its term an additional year.
  3. The Constitutional Court of Ukraine invalidated a presidential decree suspending the term of office of the Constitutional Court President.
  4. The website of the European Court of Human Rights was the subject of a cyberattack.
  5. The Constitutional Court of Bosnia and Herzegovina found two measures to contain the spread of Covid-19 unconstitutional – the mandatory use of face masks in the Canton of Sarajevo and a general restriction of movement in the Federation of Bosnia and Herzegovina.

In the News

  1. The National Congress of Argentina passed a law legalizing abortion.
  2. The Parliament of Gabon adopts a new Constitution.
  3. The President of Algeria ratifies a new Constitution.
  4. Belarus will hold a referendum on constitutional change or replacement.
  5. The United Kingdom formally exited the European Union.

New Scholarship

  1. Federico Fabbrini, Brexit and the Future of the European Union: The Case for Constitutional Reforms (2020) (examining how the EU has changed during Brexit and because of Brexit, while also reflecting on the developments of the EU besides Brexit and beyond Brexit)
  2. Justin Collings, Scales of Memory: Constitutional Justice and Historical Evil (2021) (exploring the relationship between constitutional interpretation and the memory of historical evil in the United States, Germany, and South Africa)
  3. Rehan Abeyratne and Iddo Porat (eds), Towering Judges: A Comparative Study of Constitutional Judges (2021) (examining the work of nineteen judges from fourteen jurisdictions, each of whom stood out individually among their fellow judges and had a unique impact on the trajectory of constitutional law)
  4. Adam Bonica and Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary (2020) (presenting a novel theory explaining how and why politicians and lawyers politicize courts)
  5. Sergio Bartole, The Internationalisation of Constitutional Law A View from the Venice Commission (2020) (examining the work of the Venice Commission and showing how constitutional law in has become increasingly borderless)

Call for Papers and Announcements

  1. The Contemporary Central and East European Law Journal published by the Institute of Law Studies of the Polish Academy of Sciences, invites submissions for its 2nd volume. The deadline for the submission is March 15, 2021.
  2. Birmingham Law School invites submissions for a workshop on “Constituent Power in Commonwealth Constitutional Legal Systems,” due to take place in April 2021. The deadline for submission of abstracts is January 22, 2021.
  3. PopCon project research team at the Aristotle University of Thessaloniki invites abstract submissions for an international conference on “Populist Transformation of Constitutional Law: Populist constitutionalism and democratic representation,” to be held on May 7-8, 2021. The deadline for submission of abstracts is January 10, 2021.

Elsewhere Online

  1. Rivka Weil, Can the Judiciary Guard Democratic Transitions of Power? An Indian-Israeli Perspective, Law and Other Things
  2. Kim Lane Scheppele, Trump’s Endgame – Part I and Part II, Verfassungsblog
  3. Gautam Bhatia, Horizontal Reservations and the Persistence of the Myth of Merit, Indian Constitutional Law and Philosophy
  4. Tatiana Kazim, Can trans children consent to puberty blocking drugs? The High Court of England and Wales doubts it, OxHRH
  5. Lidya Stamper, When policy isn’t enough: Examining accessibility of sexual and reproductive health rights for displaced populations in South Africa, AfricLaw
  6. Po Jen Yap, Proportionality in Asia, British Association of Comparative Law
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Published on January 4, 2021
Author:          Filed under: Developments
 

Announcement: Roundtable on the Brexit Deal

The Jean Monnet Center for International and Regional Economic Law & Justice in collaboration with EJIL and ICON cordially invites you to attend “The Brexit Deal: A Less Perfect Union or a More Flexible Compact? Assessing the Draft EU UK Trade and Cooperation Agreement” – A Roundtable (by Zoom) on January 14, 2021 at 9.30-11.30 EST; 14.30-16.30 GMT; 15.30-17.30 CET:  

The product of tumultuous political bargaining & intricate legal drafting, the EU-UK Trade and Cooperation Agreement, agreed in principle at the end of 2020, aspires to chart a new course for the EU-UK relationship in the wake of Brexit, with implications for vast areas of policy-making.  The Agreement will be intensely debated and analysed in the weeks ahead.  In this roundtable a diverse interdisciplinary group of experts and scholars give their first reflections with a view to assessing the Agreement.   Fields discussed will include the law and economics of trade in goods, state aids, regulation and standards, energy and climate, the Ireland dimension, and the relationship of the Agreement to the WTO and other aspects of the parties’ external economic policies.     

Participants include:

Gráinne de Búrca, Jean Monnet Center, NYU Law School (Introduction) 

Joseph Weiler, Jean Monnet Center, NYU Law School (Moderator)

Meredith Crowley, Department of Economics, Cambridge University

Robert Howse, NYU School of Law  

Imelda Maher, Dean of Law, University College Dublin 

Daniel Sarmiento, Editor-in-Chief, EU Law Live & Professor, Complutense University, Madrid

Jesse Scott, International Director, Agora Energiewende (Berlin), lecturer Hertie School of Governance

Thomas Streinz, Executive Director of Guarini Institute for Global Law & Tech, NYU School of Law

Registration required. Please click here to REGISTER or copy-paste this link in your browser: https://tinyurl.com/y8ju4n5b   Upon registration, you will receive an email containing zoom details information.

With the warmest wishes,

The Jean Monnet Centre, NYU School of Law

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Published on January 3, 2021
Author:          Filed under: Editorials
 

What’s New in Public Law


–Swapnil Tripathi, Attorney, India


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 Austrian Constitutional Court found the headscarf ban in elementary schools as unconstitutional.
  2. The Austrian Constitutional Court held that government measures mandating mask-wearing and splitting classes into two halves were illegal.
  3. The Indian Supreme Court rejected a challenge to the seats reserved for the Scheduled Caste members in the Panchayat elections.
  4. The Kosovo Constitutional Court found the election of the Centre’s coalition government to be unconstitutional.
  5. The Romania Constitutional Court struck down a legislative amendment that banned gender studies in university education.

In the News

  1. Altin Binaj was sworn in as the fifth member of the Constitutional Court of Albania.
  2. Hungary amended its Constitution to effectively ban same-sex couples’ adoption and define a family according to traditional Christian views of marriage, family, and gender.
  3. Minnesota town approved a permit for whites only church.
  4. Prime Minister of Nepal called for fresh elections.
  5. Parliament of Somalia passed a constitutional amendment, extending the presidential term from four to five years.

New Scholarship

  1. David Levine, Should the power of presidential power be revised?, The Judges’ Book (arguing that the abuse of presidential pardoning power can be checked through a constitutional amendment that requires the co-signature of the Speaker of the House of Representative with every pardon)
  2. Jie Huang, Applicable Law to Transnational Personal Data: Trends and Dynamics, German Law Journal (discussing the lack of a law governing transnational personal data amongst nations and argues for achieving regional coordination between states to achieve personal data protection)
  3. Mark Tushnet, Amending the Constitution in Taking Back the Constitution: Activist Judges and the Next Age of American Law (arguing in favour of the possibility of amending the United States Constitution outside of Article V, using the tool of popular sovereignty)
  4. Michael D. Breidenbach and Owen Anderson (eds), The Cambridge Companion to the First Amendment and Religious Liberty (examining the general topic of religious freedom focusing on philosophical foundations, historical interpretations and interplay between law, politics and economics)
  5. Tarunabh Khaitan, The Indian Supreme Court’s identity crisis: a constitutional court or a court of appeals?, Indian Law Review (empirically examining the decision making of the Indian Supreme Court and arguing that its expansive docket has hampered its role as an effective Constitutional Court)

Calls for Papers and Announcements

  1. The Contemporary Central and East European Law Journal published by the Institute of Law Studies of the Polish Academy of Sciences, invites submission for its 2nd volume. The deadline for the submission is 15 March 2021.
  2. The Indian Journal of Constitutional Law published by the NALSAR University of Law, invites submissions for its 10th volume. The deadline for submission is 17 January 2021.
  3. The Journal of Legal Studies published by the National Law University, Delhi (India) invites submissions for its 3rd volume. The deadline for submissions is 10 January 2021.
  4. The Sixth Annual Constitutional Law Scholars Forum (American Constitution Society of Law and Policy, Barry University Dwayne O. Andreas School of Law ACS Student Chapter & Law Review, and Texas A&M University of Law) invites proposals on any topic of constitutional law. The deadline for submission is 12 January 2021.
  5. The University of Michigan Law School is inviting submissions for its 7th Annual Junior Scholars Conference. The deadline for submission is 4 January 2021.

Elsewhere Online

  1. Swapnil Tripathi, Gender and the Supreme Court of India, Live Law
  2. Sufyan Droubi, Marques Osorio and Luiz Eloy, The Brazilian Federal Supreme Court comes to the protection of indigenous people’s right to health in the face of Covid-19, EJIL Talk!
  3. Ian Millheiser, The Supreme Court’s confusing new “religious liberty” order, explained, Vox
  4. Jan Wolf, Explainer: Can anything stop Trump from pardoning his family or even himself?, KFGO
  5. Stephen Wermiel, On the Supreme Court’s shadow docket, the steady volume of pandemic cases continues, SCOTUS Blog
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Published on December 28, 2020
Author:          Filed under: Developments
 

Book Review: Sabrina Ragone on “An Uneven Balance? A Legal Analysis of Power Asymmetries between National Parliaments in the EU” (Hoai-Thu Nguyen)


[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Sabrina Ragone reviews Hoai-Thu Nguyen’s book on An Uneven Balance? A Legal Analysis of Power Asymmetries between National Parliaments in the EU (Eleven Publishing, 2018).]


Sabrina Ragone, Associate Professor of Comparative Public Law, University of Bologna.


The volume An Uneven Balance? A Legal Analysis of Power Asymmetries between National Parliaments in the EU (Eleven, 2018), by Hoai-Thu Nguyen reads the evolution of parliamentary involvement within the EU through the lens of the financial crisis, showing to what extent asymmetry among parliaments shall be considered as a keystone to analyze the topic. In this regard, she focuses on the implications on representative democracy, which embodies the main conceptual point of reference of the examination (p. 11 ff.), as she claims that the financial and monetary crisis carried a democratic dimension (p. 1).

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Published on December 24, 2020
Author:          Filed under: Reviews
 

The Curious Conservatism of Constitutional Amendment Politics in the United States

Andrea Scoseria Katz, Washington University in St. Louis School of Law

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

A few days ago, an email popped into my inbox. It was a very typical email, the kind you delete dozens of every day: a watchdog group was soliciting money to fight back against “extremist” attacks on the Constitution. (However true the point about the U.S.’s constitutional health, this kind of language—plus the usual deluge of such emails—tends to stultify you after a while.) What did catch my attention, however, was the subject line: “The threat of an Article V Convention.”

The United States constitution is famously difficult to change.[1] Its amendment rule, found in the fifth article of the text, requires the assent of two-thirds of each legislative house plus three-fourths of the legislatures of the fifty states.[2] These demanding supermajorities are compounded by an amendment culture that tends strongly toward conservatism.[3] As early as 1862, a critic faulted Article V, not only for failing to stop the Civil War but also for quashing the spirit of American democracy: “Perhaps it may turn out that the article, instead of an instrument, as was intended, is an iron fetter, that must be broke, before free action can be attained.”[4]

All of which lends, in 2020, a certain irony to the warnings about constitutional revision sent to me by CommonCause, a progressive activist group whose own website loudly touts the fruit of its campaigning this year: “DEMOCRACY PREVAILS.” Democracy did, presumably, prevail in America in 2020 (notwithstanding the terrifying spectacle of an incumbent American president challenging the results of a free and fair election). But why does the thought of opening up the U.S. Constitution to stiffer currents of democracy elicit such panic in the left?

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Published on December 23, 2020
Author:          Filed under: Analysis
 

What’s New in Public Law


–Pedro Arcain Riccetto, Postdoctoral Fellow at the University of Oxford.


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 US Supreme Court rejected Texas-led case to overturn Joe Biden’s victory in the presidential elections held last month.
  2. The Austrian Constitutional Court ruled that a law banning girls aged up to 10 years from wearing headscarves in schools is discriminatory.
  3. The Supreme Court of Brazil authorized the use of restrictive measures against citizens refusing to take COVID-19 vaccines.
  4. The US Supreme Court dismissed a challenge to leave undocumented immigrants out of the final census count.
  5. The Romanian Constitutional Court annulled a law banning gender studies in all arms of the country’s educational system.

In the News

  1. Ukrainian President Volodymyr Zelensky says global judicial reform will start from next year.
  2. Nepal’s President dissolves Parliament at the request of Prime Minister Sharma Oli’s cabinet and announced that general elections would be held in April and May 2021.
  3. Albania’s Justice Appointment Council sends a list of three Constitutional Court candidates for selection by the Parliament.
  4. The Court of Justice of the European Union rules Hungary’s asylum policies unlawful.
  5. In Sudan, thousands protest demanding acceleration of political reforms on the second anniversary of the uprising that ousted Omar al-Bashir.

New Scholarship

  1. Tom Ginsburg and Aziz Z. Hug (eds.) From Parchment to Practice: Implementing New Constitutions (2020). Cambridge University Press (analyzing the variable nature of conflicts that arise when a new constitution is adopted and the diverse means through they are mediated, whether successfully or not)
  2. Mark A. Lemley, Chief Justice Webster (2020) American Journal of International Law (forthcoming), Working Paper (discussing a historical test case for the use of dictionaries to interpret legal documents)
  3. Sandra Botero, Trust in Colombia’s Justicia Especial Para la Paz: Experimental Evidence (2020) Journal of Politics in Latin America (relying on experimental methods to explore whether features of the case and ruling party play a role in citizens’ attitudes towards Justicia Especial Para la Paz, Colombia’s transitional justice tribunal)
  4. Daniel Esty, Laurent Fabius, and Douglas Kysar, Courts, Climate Change, and the Global Pact for the Environment (2020). Working Paper, Global Constitutionalism Seminar at Yale Law School (debating what role courts play and what remedies they could or should provide in response to climate change)
  5. Yanilda Gonzalez, Authoritarian Police in Democracy: Contested Security in Latin America (2020). Cambridge University Press (examining the persistence of authoritarian policing in Latin America to explain why police violence and malfeasance remain pervasive decades after democratization)
  6. Armin von Bogdandy and others, German Legal Hegemony? (2020) Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-43 (discussing whether or not German legal hegemony is a matter of concern in contemporary EU law and, if so, what can be done about it)
  7. Jeffrey Pojanowski, Reevaluating Legal Theory (forthcoming 2021). Yale Law Journal (developing and rendering explicit a social theory for jurisprudence that takes both dimensions of law’s moral life and factual existence seriously)
  8. Zoe Robinson, Patrick Leslie, Jill Sheppard, Judicial Ideology in the Absence of Rights: Evidence from Australia (2020). Working Paper (investigating whether apex court judges behave ideologically in cases not involving civil, political, or economic rights).

Calls for Papers and Announcements

  1. The Global Summit, hosted by the International Forum on the Future of Constitutionalism and sponsored by the Constitutional Studies Program at the University of Texas Austin, invites all to register for its online sessions that will be held over five days from January 16 to 21, 2021. The event is structured around 12 Plenary Lectures, 100 concurrent sessions, and three special prize presentations, and offers an opportunity for scholars of all ranks around the world to exchange ideas on constitutionalism.
  2. The Supreme Court of Brazil invites all to read its Case Law Compilation on COVID-19, a publication that selected, summarized, and translated into English recent decisions the Court has rendered until October 2020 addressing the COVID-19 pandemic.
  3. The OECD Public Governance Directorate organizes the webinar “Trust, Institutions and Resilience: Opportunities for recovery”, to be held on 19 January 2021. The webinar will explore the dynamics of public trust, its causes, how it facilitates and hinders policy responses during the COVID-19 pandemic, and the likely effects of government’s responses on people’s confidence and compliance with policies. The event is open to the public, but pre-registration is required.
  4. The IACL-AIDC Virtual Roundtable “Democracy 2020: Assessing Constitutional Decay, Breakdown and Renewal Worldwide”, held from 18 to 26 November 2020, launched the Conference e-book and Webinar recordings online. Access the materials here.
  5. The Latin American Centre at the University of Oxford offers part and full scholarships to attract students who would not otherwise be able to take the Msc or MPhil courses in Latin American Studies. Applications may be submitted by 22 January 2021.

Elsewhere Online

  1. Peter Nielse, Constituent Power: A symposium – Introduction, Verfassungsblog.
  2. Nicholas Reed Langen, Reforming the Supreme Court, UK Constitutional Law Association Blog.
  3. Swati Jhaveri, The Coming Age of Constitutional Judicial Review in Singapore: The Advent of “Proportionality”?, IACL-AIDC Blog.
  4. Eric Posner, America Passed the Trump Stress Test, Project Syndicate.
  5. Sarath Sanga and David Schwartz, Tear Down this Judicial Paywall, WSJ Opinion.
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Published on December 21, 2020
Author:          Filed under: Developments