Blog of the International Journal of Constitutional Law and

The Roles of Supreme Courts and Constitutional Courts in Contemporary Democracies

[Editor’s Note: In this special post, Brazilian Supreme Court Justice Luís Roberto Barroso shares his notes from an address given to students at the Yale Law School on September 22, 2016. We are grateful to Justice Barroso for this contribution to I-CONnect. –Richard Albert]

Luís Roberto Barroso, Justice, Supreme Court of Brazil; Professor of Law, Rio de Janeiro State University

I. Introduction

1. It is a pleasure and an honour to be here and to share with you all some reflections on the roles of Supreme Courts and Constitutional Courts. I was an LL.M. student here at Yale in another life, from 1988 to 1989, and I have good memories from my time here, despite all the hard work. And my life was never the same again. I have been a Justice at the Brazilian Supreme Court since June 2013. The Court has played a decisive role in the preservation of the democratic institutions during these times of economic crisis and political turmoil. However, the argument I want to present here is more general, and not focused particularly on Brazil.

II. The Worldwide Prevalence of the American Model of Constitutionalism

2. The first two written constitutions in the world – the American one in 1787, and the French one in 1791 – led to two very different models of constitutionalism. In the French model, which spread across Continental Europe, the Constitution assumed, essentially, a political dimension, with no direct and immediate application or enforcement by the Judiciary. The great principle was the supremacy of the Parliament, and the laws were not subject to judicial (constitutional) review.

3. On the other hand, the American model of constitutionalism, at least since Marbury v. Madison (decided in 1803), was characterized by the recognition of a legal dimension of the Constitution, with the possibility of direct and immediate application and enforcement by all the organs of the Judiciary. The great principle here, since the beginning, was that of Constitutional supremacy, where judges and courts, and especially the Supreme Court, could exercise judicial review and, consequently, deny application of norms deemed inconsistent with the Constitution.

4. After the Second World War, the American model prevailed in most of the democratic world. Although the blueprint for the Constitutional Courts adopted in Europe[1] differs from the American model in structure and procedure, the underlying concept is the same: the Constitution is endowed with supremacy and acts of the Legislature or the Executive that conflict with it can be invalidated by a court.

III. Mission and Roles of the Supreme Courts and Constitutional Courts

5. As we know, Constitutional Courts safeguard the supremacy of the Constitution. This essentially means that they:

(i) Ensure the majority rule (i.e. courts must defer to political decisions made by other branches of government);

(ii) Protect the rules of the democratic game (i.e. prevent majorities from changing the rules to perpetuate their own regime); and

(iii) Protect the fundamental rights of all, including those of minorities.

6. To realize these objectives, Constitutional Courts play three major roles:

(i) Counter-majoritarian: this is how constitutional theory refers to the fact that unelected judges can invalidate decisions from public agents chosen by the people;

(ii) Representative: this is the role that the courts exercise when they attend to the social demands that were not timely satisfied by majoritarian politics (in the United States, Griswold v. Connecticut and Lawrence v. Texas may be good examples); and

(iii) Enlightened: this is the role that Constitutional Courts exercise exceptionally, when they act against the will of Congress and even against the popular majority, with the purpose of protecting minorities and advancing history. Some American examples include Brown v. Board of Education, Roe v. Wade and, possibly, Obergefell v. Hodges.

7. Some of these ideas are controversial, but time and space constraints dictate that we leave this discussion for another time.

IV. The Judicialization of Life

8. One characteristic of current times, throughout the world, is the judicialization of life. In different countries, some of the major political, moral and social issues are having their final chapter decided before Supreme or Constitutional Courts. There are several causes of this phenomenon.

9. I point out three:

(i) After the Second World War, many countries realized that a strong and independent Judiciary was a necessary component for the preservation of democracy and protection of fundamental rights;

(ii) Despite the rise of democracy, the world underwent a certain disillusionment with majoritarian and representative politics; and

(iii) In relation to many issues, especially the morally controversial, the Legislature often cannot produce consensus or even decisions (same-sex marriage, abortion, assisted suicide, and embryonic stem cell research are good examples). In these cases, the Judiciary ends up having to create the law that will govern these matters.

10. In some countries, this judicialization of life phenomenon is enhanced by Constitutions which are more analytical, as is the case in Brazil, South Africa and India. In all of them – and especially in Brazilthere is an intricate and complex sort of litigation taking place: one involving the enforcement of welfare or social rights granted by the Constitution, in matters relating to health care, sanitation, access to education and other issues.

V. The Complexity of Modern Life and the Uncertainty of Law

11. Besides the institutional rise of the Judiciary and the accentuated judicialization of life, there is another phenomenon that increases the role of judges and courts. It is that, as societies become more complex, the Constitution and the laws lose their capacity to predict, in advance, solutions for all legal problems. That increases, in some measure, subjectivity and judicial discretion, as judges and courts have to apply increasingly vague clauses (indeterminate legal concepts) or abstract principles.

12. Some examples of real and unusual cases:

(i) Can a deaf-mute couple, through genetic engineering, choose to generate a deaf-mute child, so the child inhabits the same existential universe as they do?

(ii) Can a woman use the sperm of her dead husband, frozen in a sperm bank, to get pregnant?

(iii) Or even, referring to a case that occurred in São Paulo: a woman reached the top of a liver transplant list and received the organ. The list continued, and a man rose to the top position. When a new liver became available and was ready to be delivered to the first in line, the female recipient of the previous liver suffered a transplant rejection and demanded a new liver. Who enjoys the right under these circumstances? Note that in this case the judge will be playing God, deciding who is to live or die.

13. The common theme among all of these situations is the absence of a “ready made” solution available in our legal arsenal, one that can be conveniently plucked from the shelf by a judge. In all of these cases, the judge will have to determine the best solution, guided by very abstract norms and exposing his or her arguments with transparencyLegitimacy here will not be rooted in a previous decision by the legislature, but in the court’s reasoning and its capacity to be understood and accepted. The same is true when there are collisions of constitutionally protected values or interests, such as the conflict between: (a) freedom of speech v. right to privacy; (b) freedom of contract v. drug price control; (c) environmental protection v. construction of hydroelectric plants. These are situations that occur quite often, assuming different forms and features in each country.

VI. Worldwide Examples of Judicialization

14. Examples of the judicialization of political, economic or moral issues are found all over the world, in cases of high visibility:

(i) In Brazil, it was the Supreme Court that: (a) established the procedure that was to be followed in the impeachment of the President of the Republic; (b) expelled the Speaker of the House from his seat, and (c) paved the way for same-sex marriages;

(ii) In the United States, it was the Supreme Court that: (a) decided the election of 2000; (b) recently validated a drastic interference in the California prison system; and (c) secured the right to same-sex marriage;

(iii) In Israel, it was the Supreme Court that gave the final word on the constitutionality of building a wall on the border with the Palestinian territory;

(iv) In South Korea, the Supreme Court restored to office the President who had been ousted by an impeachment process;

(v) In Mexico, it was the Supreme Court that facilitated the legalization of marijuana;

(vi) In South Africa, the Constitutional Court held that the law imposing the death penalty was unconstitutional.

15. As it turns out, simply put, the world is largely judicialized and Supreme Courts and Constitutional Courts are left to decide cases with great political, social and moral repercussions. This is a new situation that disrupts the traditional view of the Separation of Powers and raises important discussions about democratic legitimacy. Although the border between law and politics has become much less clear in recent decades, the separation between one thing and the other remains essential for the idea of rule of law. Politics is the space of the majority’s will. Law is the space of reason, or more specifically, public reason. Despite the clear theoretical perception that law and politics are different, in the real world it is often not so easy to distinguish between the particular sphere of constitutional interpretation and that of legislative choice.

16. On another occasion, we will discuss these issues. For now, it’s time to conclude.

VII. Conclusion

17. The judiciary, generally, and particularly the Supreme and Constitutional Courts, are taking on an increased political and institutional role in many parts of the world. We must deal with this phenomenon with maturity and great balance, to avoid both the failure to intervene in decisive moments, as well as the undue politicization of judicial bodies. Life intersperses prudence and daring, and it is not always easy to find harmony in it, the middle way. But that is the path we must take. Supreme and Constitutional Courts should neither be excessively timid nor arrogant. And they must be capable of capturing social sentiment.

18. I like to emphasize this role with a little parable. In life, we are all acrobats trying to find the proper balance. This is true for everyone, for people and institutions, for those on stage and those in the audience. To live is to balance on a tightrope, making choices every step of the way. Sometimes, someone in the audience may think that the acrobat is flying. There is not much of a problem with that, because life is made of certain illusions. But the acrobat, he must know, all along, that he is balancing himself. Because if he thinks he is flying, he will fall. And in real life, there is no safety net.

19. Constitutional jurisdiction, judicial review, and powers of Supreme and Constitutional Courts must be exercised in the same way that life must be lived: with a moral compass, determination and humility. Thank you very much.

Suggested CitationLuís Roberto Barroso, The Roles of Supreme Courts and Constitutional Courts in Contemporary Democracies, Int’l J. Const. L. Blog, Oct. 21, 2016, at:

[1] It should be noted that European Constitutional Courts were inspired by Germany, as the repercussions of the pre-war Austrian precedent did not extend beyond its border.

Print Friendly
Published on October 21, 2016
Author:          Filed under: Analysis

The New Selection Process for the Supreme Court of Canada: A Global Constitutionalism Perspective

Maxime St-Hilaire, Assistant Professor, Faculty of Law, University of Sherbrooke

Earlier this week on Monday, October 17th, Prime Minister (PM) Justin Trudeau announced the elevation of Justice Malcolm Rowe from the Supreme Court of Newfoundland and Labrador (Court of Appeal) to the Supreme Court of Canada (SCC).

Filling the vacancy left by Justice Thomas Cromwell’s retirement, this is the first nomination made under the “new selection process” (NSP) announced by the PM earlier this summer in August.

Against the backdrop of an indirect constitutionalization of the Court’s “composition” – through the constitutional amendment procedure provided for in the Constitution Act 1982 (CA 1982) as interpreted by the Court itself – including “eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982,” this new process hasn’t been made part of the Supreme Court Act (SCA), but presents itself as a mere policy. Leaving aside the question whether what doesn’t even purport to be part of the law may reveal an unconstitutional constitutional amendment, observers of Canadian constitutional law and justice must bear in mind that courts endowed with the jurisdiction to answer reference questions may give advisory opinions on that part of the Constitution that was meant to be purely political, and which is principally composed of constitutional conventions. This partly explains why, although praised by some, the new process quickly proved controversial. Its lack of guaranteeing the preservation of regional representation on the Court had lawyers from Atlantic Canada seeking a judicial declaration that it amounts to an unconstitutional constitutional amendment, thus raising a point that probably became moot with the announcement of Rowe’s appointment. The “functional bilingualism” requirement has also been questioned, and was called unfair by leading aboriginal voices.

This post isn’t about whether Justice Rowe is a good pick. It’s about taking the announcement of his appointment as an opportunity to go back to the NSP, but from a perspective different from the ones that have been debated so far: that of the Venice Commission’s global standards. This requires first situating and describing the NSP.

Read the rest of this entry…

Print Friendly
Published on October 20, 2016
Author:          Filed under: Analysis

Article Review/Response: Robert Leckey and Grant Hoole on Remedial Discretion

[Editor’s Note: In this installment of I•CONnect’s Article Review/Response Series, Grant Hoole reviews Robert Leckey’s recent article in I•CON on The Harms of Remedial Discretion. Leckey then responds to the review.]

Review of Robert Leckey’s “The Harms of Remedial Discretion”

Grant Hoole, University of New South Wales

Robert Leckey has raised an important dissenting voice challenging the generally favourable treatment constitutional scholars have given to the rising use of prospective or delayed judicial declarations of invalidity in countries with entrenched bills of rights such as South Africa and Canada. These remedial measures were first introduced to Canadian jurisprudence under narrow circumstances in which the immediate invalidation of unconstitutional laws could inflict significant social harm. Expressly permitted under s 172 of the South African Constitution, they offered an important tool for the courts to safeguard against damaging gaps wrought by the large-scale invalidation of apartheid-era laws. In both Canada and South Africa, however, delayed and prospective declarations of invalidity now appear to reflect a deliberate attempt by the courts to remand responsibility to the legislatures to craft remedial cures for invalid legislation, based on assumptions about institutional competence and role-assignment under the separation of powers. Several scholars have cited these developments as positive examples of inter-institutional dialogue that should temper hostility to the judicial enforcement of rights. Leckey challenges this line of thinking on two fronts, noting its neglect of the harms of remedial discretion, and questioning whether remedial discretion truly signals a gentler, more deferential approach to the judicial enforcement of rights. Both criticisms are persuasive but incomplete.

Read the rest of this entry…

Print Friendly
Published on October 19, 2016
Author:          Filed under: Reviews

What’s New in Public Law

–Simon Drugda, Nagoya University Graduate School of Law (Japan)

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

Developments in Constitutional Courts

  1. The Supreme Court of Iraq ruled against Prime Minister Haider al-Abadi’s decision to scrap three vice-president positions.
  2. The Supreme Court of Indonesia revoked the environmental permit for a cement plant planned by the country’s largest, state-controlled, cement producer.
  3. The Federal Constitutional Court of Germany rejected a legal challenge to the EU-Canada trade deal.
  4. The Constitutional Court of Bulgaria overturned an amendment to the Penal Code that removed the statute of limitations for the prosecution of crimes committed by senior functionaries of the Communist Party between 1944 and 1989.
  5. The Supreme Court of India ruled that a sex worker cannot lodge a sexual assault complaint against her customers if they refuse to pay.
  6. A Supreme Court Justice in the Philippines warned that President Rodrigo Duterte could be impeached if he gives up the country’s sovereign rights over the disputed Scarborough Shoal to China.
  7. The Constitutional Court of Croatia started proceedings in a 25-year-old constitutional appeal over the legality of abortion.
  8. The Constitutional Court of Turkey rejected an appeal for annulment, filed by the main opposition party, of decree laws issued by the government since the state of emergency on the grounds of non-competence.
  9. The Supreme Court of Venezuela allowed President Nicolas Maduro to put forth the country’s 2017 budget without going through the National Assembly. The Court approved the budget, which will be handed down by decree, despite a constitutional budgetary authority of the Congress.

In the News

  1. The Thai Constitution Drafting Committee (CDC) submitted a revised draft charter to the government. Royal sanction of the charter was expected for early next month before King Bhumibol Adulyadej died on Thursday.
  2. The Uzbek Senate passed mass amnesty for prisoners ahead of their December 8th celebration of the adoption of the country’s constitution.
  3. The French Parliament adopted new legislation allowing transgender citizens to update their legal status without needing to undergo sterilization procedures.
  4. Grenada is to hold a referendum on a series of constitutional amendment bills, including a proposal to substitute the Privy Council with the Caribbean Court of Justice (CCJ) as the final court of appeal.
  5. The Nigerian security agency carried out anti-corruption raids targeting senior judges.
  6. The Parliament of Ivory Coast approved changing the constitution to ease nationality rules for presidential candidates.
  7. The Parliament of Burundi voted overwhelmingly to withdraw from the International Criminal Court, while Burundi’s government banned three U.N. investigators from its territory.
  8. Turkey’s government said it would revive efforts to change the constitution and expand the powers of the presidency.
  9. Brazil’s lower house approved a constitutional amendment bill to cap public spending. The bill will limit spending on health, education, social welfare, and public services until 2037.
  10. The Ethiopian government declared a state of emergency following a week of anti-government violence.
  11. The Spanish Council of Ministers approved of the submission of a new complaint to the Constitutional Court against the proposed bill on Catalan 2017 independence referendum.

New Scholarship

  1. Xenophon Contiades, Alkmene Fotiadou eds., Participatory Constitutional Change: The People as Amenders of the Constitution (2016) (exploring the recent trend of enhancing the role of the people in constitutional change)
  2. Vanessa MacDonnell, A Theory of Quasi-Constitutional Legislation, 53 Osgoode Hall Law Journal (2016) (arguing that quasi-constitutional legislation in Canada should be understood as implementing constitutional imperatives and contrasting quasi-constitutional legislation to constitutional statutes in the United Kingdom)
  3. Alice Donald and Philip Leach, Parliaments and the European Court of Human Rights (2016) (examining the role of national parliaments in the implementation of judgments of the European Court of Human Rights in Ukraine, Romania, the United Kingdom, Germany, and Netherlands)
  4. Debtoru Chatterjee, Presidential Discretion (2016) (examining the scope and limitations of presidential discretionary powers through examples from India, Britain, and the Commonwealth)
  5. Laurens Lavrysen, Human Rights in a Positive State (2016) (critically engaging with the positive obligations case law of the European Court of Human Rights)
  6. Joanna Howe and Rosemary Owens eds., Temporary Labour Migration in the Global Era: The Regulatory Challenges (2016) (analyzing temporary labor migration programs from a sustained socio-legal perspective on a comparative basis)
  7. Francesca Bignami and David Zaring eds., Comparative Law and Regulation: Understanding the Global Regulatory Process (2016) (analyzing the entire gamut of regulatory law in over thirty different domestic and international jurisdictions)
  8. Louis J. Kotzé, Global Environmental Constitutionalism in the Anthropocene (2016) (offering a systematic conceptual framework for global environmental constitutionalism in the epoch of the Anthropocene)
  9. Andrew Lynch ed., Great Australian Dissents (2016) (examining the topic of judicial disagreement and dissents in Australian law)
  10. Christine Bell, Charmaine Rodrigues, Silvia Suteu, Tom Gerald Daly, and Jenna Sapiano, Constitution-Making and Political Settlements in Times of Transition, Global Constitutionalism, special section (forthcoming 2017) (addressing constitution-making and political settlements in times of transition and arguing that traditional constitutional devices have to be understood differently in times of transition where the constitution plays a constructivist role with respect to the forming of agreement rather than reflecting prior agreement)
  11. Rory O’Connell, The Political Constitution Ten years from Now – Dodo or Phoenix? Implications of the Brexit Referendum (2016) (examining implications of the Brexit referendum for the United Kingdom’s political constitution)
  12. Neil Walker, Constitutionalism and Pluralism: A Conflicted Relationship? in A. Lang and A. Wiener eds., Handbook of Global Constitutionalism (forthcoming) (exploring the ways in which constitutionalism seeks to entertain political pluralism and suggesting why this relationship is a conflicted one)
  13. Ana Bobic, Constitutional Pluralism Is Not Dead: An Analysis of Interactions between Constitutional Courts of Member States and the European Court of Justice, 18 German Law Journal (forthcoming 2016) (arguing that the exhibited self-restraint of both national constitutional jurisdictions and the European Court of Justice points to an awareness of the importance of preserving the pluralist setting)
  14. Arif Riza and Dardan Vuniqi, Juridical Sources of the Law in Kosova in Relation to the Public International Law (2016) (exploring the relationship of sources of law in Kosovo to public international law)
  15. Kevin M. Stack, Preambles As Guidance, 84 George Washington Law Review 1252 (2016) (situating regulatory preambles as a form of guidance within the principles of administrative law)
  16. Shamsul Falaah, Theocratic Constitutionalism: A Discourse on the Political System, Democracy, Judiciary and Human Rights Under Islamic Theocratic Constitutionalism, 2 Waikato Islamic Studies Review (2016) (analyzing the status of the political system, the role of the judiciary, and the mechanism of the protection of fundamental rights and freedoms under theocratic constitutionalism)
  17. Jack Landman Goldsmith III and John F. Manning, The Protean Take Care Clause, 164 University of Pennsylvania Law Review 837 (2016) (examining the uses of the Take Care Clause in jurisprudence of the United States Supreme Court)
  18. Helen Irving, What is a Citizen?, in Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (2016) (challenging theories of citizenship as rights and citizenship as participation and offering instead an “existential” defense of citizenship that prioritizes protection of the citizen on the part of the state)

Calls for Papers and Announcements

  1. The Younger Comparativists Committee of the American Society of Comparative Law invites submissions for its Sixth Annual YCC Global Conference in Istanbul, Turkey on April 28-29, 2017. Abstracts for submission are due by December 31, 2016.
  2. The IACL Research Group on Constitution-Making and Constitutional Change, the University of Nicosia, and the Centre for European Constitutional Law invite submissions for a conference on Imposed Constitutions: Aspects of imposed constitutionalism,” to be held at the University of Nicosia on May 5-6, 2017. Abstracts for submission are due by December 20, 2016.
  3. The Institute for Studies on Federalism and Regionalism at the European Academy of Bolzano/Bozen (EURAC) and the University of Innsbruck invite applications for its cross-border postgraduate program “Winter School on Federalism and Governance 2017, to be held in spring 2017. Deadline for applications is October 23, 2016.
  4. The Socio-Legal Review (National Law School of India University) invites submissions for a volume on Crime and Society.” The deadline for submission for the first 2017 issue is November 1, 2016.
  5. The Centre for Constitutional Studies and University of Alberta, Faculty of Law invites papers for a conference on the theme “Reconciliation / Wahkohtowin,” to be held on September 21-23, 2017. Proposals for papers are due by November 17, 2016.
  6. The Association for the Study of Law, Culture, and the Humanities (ASLCH) invites submissions for its twentieth annual conference on March 31 – April 1, 2017, at Stanford Law School. Panel and paper proposals are due by October 28, 2016.
  7. The Law and Humanities Research Center at Panthéon-Assas University invites submissions for its first international conference on “The Dark Sides of the Law in Common Law Countries” in Paris, France on June 15-17, 2017. The submission deadline is December 15, 2016.
  8. The University of Copenhagen, Centre of Excellence for International Courts (iCourts) invites submissions for a workshop on “Cognitive Sociology, Culture, and International Law” to be held on April 28-29, 2017. Abstracts are due by November 1, 2016.

Elsewhere Online

  1. Tom Ginsburg, Heavy Lies the Crown, Foreign Policy
  2. Colin P.A. Jones, 9/11: the day Japan’s Supreme Court went (slightly) postal, The Japan Times
  3. Avinash K. Dixit and David McAdams, Applying Game Theory to the Supreme Court Confirmation Fight, Harvard Business Review
  4. Kevin Aquilina, Removal tainted by bias, Times of Malta
  5. Katy Steinmetz, How Ruth Bader Ginsburg Found Her Voice, Time
  6. Elke Cloots, Can private undertakings hide behind “religious neutrality”?, Verfassungsblog
  7. Rim-Sarah Alouane, The French Council of State on the Burkini – Part 1: “Reflections on Public Order”, Oxford Human Rights Hub
  8. Brian Christopher Jones, Do not turn Brexit into Britain’s version of Bush v Gore, The Conversation
  9. Sionaidh Douglas-Scott, The ‘Great Repeal Bill’: Constitutional Chaos and Constitutional Crisis?, UK Constitutional Law Association
  10. Robert Craig, Report of Proceedings: Miller v Secretary of State for Exiting the European Union, UK Constitutional Law Association
  11. Carlos Arturo Villagrán Sandoval, A Reflection on the “Dualism within Dualism” in the Interaction between International Law and Domestic Law in Guatemala, Blog of the IACL, AIDC
  12. Simon Badran, Lebanon’s Presidential Vacancy: An Opening for Constitutional Reform?, ConstitutionNet
  13. Zoltán Szente, The Controversial Anti-Migrant Referendum in Hungary is Invalid, Constitution Making and Constitutional Change
  14. Amanda Taub and Max Fisher, Why Referendums Aren’t as Democratic as They Seem, The New York Times
  15. Katy Migiro, Factbox: Four landmark court rulings in Kenya’s battle over forced eviction, Reuters
  16. Paula Gerber, With the plebiscite set to be blocked, who will leave a legacy of marriage equality?, The Conversation
  17. Sissoko Bamassa and Guissé Aboubacar, Mali’s promising constitutional reform process: Cementing peace through devolution of power, ConstitutionNet
  18. Heo Jae-hyun, How South Korea must manage national security and freedom of conscience, The Hankyoreh
Print Friendly
Published on October 17, 2016
Author:          Filed under: Developments

A Constitutional Reform Project for New Zealand

Leonid Sirota, AUT Law School

Sir Geoffrey Palmer and Andrew Butler, now both barristers with an academic past, the former also once an Attorney-General, Justice Minister, and briefly Prime Minister, have published a book arguing that New Zealand needs for a codified, entrenched constitution for New Zealand ― something the country famously lacks at present. They simultaneously make the case for having a constitution of this sort and put forward a tentative text for one. I have expressed my scepticism about the reasons Sir Geoffrey and Dr Butler have given for entrenching New Zealand’s constitution elsewhere. In this post, I will highlight the key elements the proposed text.

Perhaps the first observation to make about the Palmer-Butler text is that it is very long. In the book, the table of contents of the constitution alone takes up five pages; the text, well over forty. If it were enacted in this form, New Zealand’s constitution would fit comfortably within the global trend for long, detailed constitutional texts covering a multitude of topics identified by Mila Versteeg and Emily Zackin. Yet the copious detail in the proposal also reflects a longstanding inclination among New Zealand’s public lawyers to see as constitutional governance issues that an American or a Canadian would never think of in this way. Whether this inclination, developed in the context of a flexible and uncodified constitution, is a useful guide to drafting an entrenched constitutional text is a question worth asking.

Read the rest of this entry…

Print Friendly
Published on October 14, 2016
Author:          Filed under: Analysis

Virtual Bookshelf: Constitutional Revolution in Germany–A Review of “The Forgotten Revolution?” by Stephan Jaggi

Richard Albert, Boston College Law School

Bruce Ackerman’s theory of “constitutional moments” has traveled the world as scholars have applied it outside the United States. Juliano Zaiden Benvindo has drawn from the theory to examine recent constitutional changes in Brazil, Sujit Choudhry has applied the theory to Canada in connection with Quebec secession, and Dario Castiglione has explored whether the theory can help us understand what is at stake in the constitution-making project for Europe. Dozens of other examples abound.

In his new book on “The Forgotten Revolution? The 1989 Revolution in East Germany and its Impact on Unified Germany’s Constitutional Law” (Nomos: Hart Publishing 2016), Stephan Jaggi draws from Ackerman as well, but it is the Ackermanian theory of “intergenerational synthesis” that takes center stage. Jaggi argues that East Germany’s peaceful popular movement of 1989 was a revolution whose values the Federal Constitutional Court subsequently incorporated into its interpretation of the Basic Law after reunification.

The upshot of Jaggi’s book is that the jurisprudence of post-reunification Germany is the product of both East and West German influences, contrary to the conventional view that Germany’s post-reunification jurisprudence continued exclusively in the tradition of the constitutional law of pre-reunification West Germany.

Here is Jaggi in his own words:

Read the rest of this entry…

Print Friendly
Published on October 13, 2016
Author:          Filed under: Reviews

Developments in Belgian Constitutional Law: The Year 2015 in Review

[Editor’s Note: This is the fourth installment in our Year-in-Review series. We welcome similar reports from scholars around the world on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy, the Slovak Republic and Romania.  As we have done in the past, we reiterate our sincere thanks to our contributors for how much they have contributed to our learning and appreciation of public law around the world. Today we give great thanks to our Belgian contributors. –Richard Albert]

Luc Lavrysen (Judge at the Belgian Constitutional Court and Full Professor at Ghent University), Jan Theunis (Associate Professor at Hasselt University and law clerk at the Belgian Constitutional Court), Jurgen Goossens (Postdoctoral Researcher at Ghent University), Pieter Cannoot (Academic Assistant at Ghent University), and Viviane Meerschaert (Legal Officer at the Belgian Constitutional Court). For more recent developments in Belgian constitutional law, visit

I. Introduction to the Belgian Constitutional Court

The Belgian Constitutional Court was created in 1983 and started functioning in 1984 under the name of “Court of Arbitration”. On 7 may 2007 the name changed to “Constitutional Court”.

From the seventies of last century on, Belgium embarked on a process of federalization. The transformation of the unitary Belgian state into a federal state led to a multiplication of legislative bodies in Belgium. The creation of federated entities – regions and communities – empowered to adopt rules with the same legal effect as acts of federal parliament resulted in the possibility of conflicts between legislative acts. Therefore, the original mission of the Constitutional Court was to supervise the observance of the constitutional division of powers between the federal state, the communities and the regions.

In the following decades, the competence of the Court was extended to the constitutional rights and freedoms, limited at first stage (1988) to the principle of equality and non-discrimination (Articles 10 and 11 of the Constitution), the rights and liberties in respect of education (Article 24 of the Constitution), and later on extended (2003) to all constitutional rights and freedoms. However, the Court has always held the view that Articles 10 and 11 are general in scope and prohibit any form of discrimination, irrespective of its grounds: the constitutional principles of equality and non-discrimination apply to all rights and freedoms, including those that are embedded in international treaties with binding effect in Belgium. Consequently, the Court had already been reviewing the compatibility of legislative acts with other rights and freedoms before its jurisdiction was extended to review the constitutionality of other articles of the Constitution, namely indirectly through Articles 10 and 11 of the Constitution. Since 2014, the Court is also competent to review compliance with Article 143, §1 of the Constitution (federal loyalty).

Read the rest of this entry…

Print Friendly
Published on October 12, 2016
Author:          Filed under: Analysis

What’s New in Public Law

Angelique DevauxCheuvreux Notaires, Diplômée notaire, LL.M

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

Developments in Constitutional Courts

  1. The U.S. Supreme Court let stand a lower court’s ruling that police use of a taser amounted to unconstitutional excessive force in a case involving a mentally ill man who died after being stunned with the electrical weapon five times in two minutes.
  2. South Africa’s Constitutional Court refused to hear president Zuma’s appeal against fraud and corruption charges.
  3. Georgia’s Constitutional Court struck down a law that has landed many young people in jail for years for using marijuana.
  4. Zimbabwe’s High Court overturned a two-week ban on protests in the capital following a legal challenge from political activists.
  5. The U.S. District Court in the Northern Marianas ruled that the US$1,000 excise tax on guns is unconstitutional.

In the News 

  1. Hungarian Prime Minister Viktor Orbán proposed amending the Constitution to prevent the European Union from settling migrants in Hungary without the approval of Parliament.
  2. Colombians rejected a peace deal to end 52 years of war with FARC.
  3. A query challenging the constitutionality of certain provisions of the law “On Amendments to the Constitution of Ukraine (Regarding Justice)” will be sent to the Constitutional Court of Ukraine in the coming days.
  4. Three judges have been appointed to Georgia’s Constitutional Court after taking the oath of office in Batumi.
  5. The Parliament of Catalonia voted to hold an independence referendum next September.
  6. Following mass protests in Poland, legislators have reversed their positions and rejected a near-complete abortion ban.
  7. Nepal’s government is working towards amending the new Constitution to address the demands of the Madhesi parties.
  8. Morocco’s moderate ruling Islamist party defeated a liberal rival seen as close to the royal palace in parliamentary elections.
  9. The Alabama Supreme Court ruled that the state’s death-penalty system is still constitutional.
  10. The Tennessee Supreme Court heard a case surrounding the constitutionality of protocols surrounding lethal injection, leaving it up to the court to decide whether lethal injection can continue in Tennessee, or whether an alternative needs to be found regarding the death penalty.

New Scholarship

  1. Engy Abdelkader, A comparative Analysis of European Islamophobia: France, UK, Germany, Netherlands and Sweden, UCLA Journal of Islamic and Near Eastern Law (forthcoming 2016) (engaging in a descriptive, normative and comparative analysis of contemporary religious freedom challenges, measured by official restrictions and social hostilities, confronting Muslim minority communities in five European countries including, France, United Kingdom, Germany, Netherlands and Sweden)
  2. Jordan Cash, Book Review of James Madison and Constitutional Imperfection by Jeremy D. Bailey (2016) (reviewing Jeremy D. Bailey’s important contribution to the study of James Madison’s political theory)
  3. Paul P. Craig, Judicial Review of Questions of Law: A Comparative Perspective, in Comparative Administrative Law, Susan Rose Ackerman and Peter Lindseth (eds.) (forthcoming) (analyzing judicial review in the UK, USA, Canada, and the EU)
  4. Sionaidh Douglas-Scott, Brexit, Article 50 and the Contested British Constitution, Modern Law Review (forthcoming) (discussing the early stages of the Art 50 TEU process and those aspects that relate to British constitutional law)
  5. Paula Gerber, Cai Wilkinson, Anthony John Langlois, and Baden Offord, Human Rights in Papua New Guinea: Is this Where We Should Be Settling Refugees?, Australian Journal of Human Rights (2016)(providing insight into the human rights situation in Papua New Guinea and making recommendations regarding the prospect of resettling refugees in that country)
  6. Joseph Magnet, Daniels v. Canada: Origins, Intentions, Futures, Ottawa Faculty of Law Working Paper No. 2016-38(2016) (explaining the history which made litigation necessary to resolve a range of issues between Canada and representatives of Métis and Non-Status Indians)
  7. Mariana Pargendler, The Role of the State in Contract Law: The Common-Civil Law Divide (2016) (comparing contract law between the common law system and the civil law system)
  8. Alice Ristroph, The Constitution of Police Violence, UCLA Law Review (forthcoming 2017) (examining police violence and tracing resistance and compliance in order to reveal the ways in which the law distributes risks of violence)
  9. Anna Śledzińska-Simon, Is there a place for the Islamic veil in the workplace? Managerial prerogatives and the duty of reasonable accommodation in the EU anti-discrimination governance, ERA Forum (2016) (analysing whether an employer may justify a ban on religious symbols with the protection of a company’s image or customer preference)
  10. Thiago Luís Santos Sombra, Representation and Deliberation: Does Every Vote Have The Same Influence in The Voting Process Of Associations?, Thurgood Marshall Law Review (2016) (outlining the possibility of giving different weight to the right to vote in civil associations in civil law and common systems)

Calls for Papers and Announcements

  1. The Journal of Intellectual Property, Information Technology and Electronic Commerce Law issued a call for papers on Intermediary Liability as a Human Rights Issue. The abstract deadline is November 30, 2016.
  2. The Wisconsin Journal of Law, Gender and Society issued a call for papers for its symposium entitled “Women in the Boardroom: The Social and Business Arguments that Challenge Executive Board Homogeneity.” The abstract deadline is November 1, 2016.
  3. Scuola Sant’Annais hosting an upcoming conference on the Constitution of Canada on May 24, 2017 in Pisa, Italy. Interested scholars are asked to submit an abstract by December 15, 2016.
  4. The Pepperdine Law Review issued a call for papers for its annual symposium on “The Supreme Court, Politics and Reform” to be held in Malibu, California, on April 8, 2017. The proposal deadline is November 11, 2016.
  5. The Asian Law Institute and the University of Philippines, College of Law issued a call for papers for its 14th Annual ASCLI conference to be held on May 18-19, 2017. The broad theme of the 2017 conference is“Uniting Force? ‘Asian Values’ & the Laws.” The submission deadline is December 1, 2016.
  6. University of California at Los Angeles, the University of Illinois College of Law, Princeton University, and the American Society of Comparative Law issued a call for papers for their Annual Comparative Law Work-in-Progress Workshop, to be held at the UCLA School of Law on April 28-29, 2017. Papers are due by February 1, 2017.
  7. The Law and Humanities Research Center at Panthéon-Assas University issued a call for papers for its first international conference entitled “The Dark Sides of the Law in Common Law Countries” to be held in Paris, France on June 15-17, 2017. The submission deadline is December 15, 2016.

Elsewhere Online

  1. Michael Gilbert, Why Proof of Citizenship Won’t Improve Election Integrity, Jurist
  2. David Gwynn Morgan, Arab Spring in the Kuwaiti Court of Cassation, Constitution Making and Constitutional Change
  3. Jill Goldenziel and Carl Hvenmark, Should Europe Abandon Its Migrant Deal with Turkey?, The National Interest
  4. Darren Harvey, In the Light of the Guidelines: Brexit and the European Council, European Law Blog
  5. Rebecca Macfie, Does New Zealand need a new constitution?, New Zealand Listener
  6. Denis Tanti, Unconstitutional jobs, Times of Malta
Print Friendly
Published on October 10, 2016
Author:          Filed under: Developments

Invitation to Friends of I-CONnect: Brexit–Why it Happened and What it Means for the UK and the EU

Richard Albert, Boston College Law School

Friends of I-CONnect are invited to attend a roundtable discussion on Brexit on Thursday, October 13, 2016, at 4pm here on the campus of Boston College at 10 Stone Avenue.

David Cameron, Professor of Political Science and Director of EU Studies at Yale University, will make remarks on “Brexit: Why it Happened and What it Means for the UK and the EU.”

This program is generously sponsored by the Clough Center for the Study of Constitutional Democracy, which is directed by my faculty colleague Vlad Perju.

Free registration for this event is available here.brexit-flyer-final-page-001

Print Friendly
Published on October 6, 2016
Author:          Filed under: Developments

Virtual Bookshelf: Pre-Constitution Constitutions–A Review of “The Constitutions that Shaped Us,” Edited by Laforest, Brouillet, Gagnon and Tanguay

Richard Albert, Boston College Law School

The National Constitutional Center in Philadelphia recently hosted a symposium on The Declaration of Independence as Introduction to the Constitution.

Organized by Alexander Tsesis, the symposium brought together one dozen scholars in conversation around the Declaration of Independence. Their symposium papers have been published in a special issue of the Southern California Law Review.

Each paper is worth reading for the fascinating and often challenging perspectives they suggest for how to understand the Declaration of Independence today. For example, Jack Balkin and Sanford Levinson collaborate on a paper about the theory and global significance of the right to alter or abolish government—a right found in the Declaration. Amanda Frost presses the Declaration for answers to current controversies in immigration law. And Mark Graber and Frank Michelman’s respective contributions double as a call to action: Graber argues that law professors should teach the Declaration while Michelman makes the case that lawyers could rely on the Declaration in the constitutional challenges they bring in the service of progressive causes.

In his introduction to the symposium issue, Tsesis discusses the importance of the revolutionary document. He writes:

Throughout the course of United States history, the Declaration of Independence has played an outsized role in constitutional development. For each generation of Americans, the document has reflected the historical reason for independence and the idyllic statement of representative government. On the one hand, it is not part of the formal Constitution, on the other, it informs constitutional interpretation.[1]

Later in his introduction, Tsesis makes an interesting observation: “many early American statesmen conceived the document of independence to be a proto-constitutional statement, rather than as a glinting generality.”[2]

For me, Tsesis’s symposium on the Declaration of Independence raises the question whether and how we can identify what I will identify as a “pre-Constitution constitution.”

A pre-Constitution constitution is a document, agreement or understanding that pre-dates a codified constitution but that nonetheless has constitutional status when interpreting the later-adopted codified constitution.

A recent book offers insights on this question with reference to Canada.

Read the rest of this entry…

Print Friendly
Published on October 5, 2016
Author:          Filed under: Reviews