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I·CONnect

Blog of the International Journal of Constitutional Law

Argentina Legalizes Gay Marriage

After 15 hours of debate in the Senate on July 15, Argentina became the first nation in Latin America to legalize gay marriage. One of the more contentious developments in the second half of the twentieth century has been the struggle between religion and the State over the power to regulate family life and gender issues. Latin America has been an outlier on these issues (particularly with regard to abortion) because of the influence of the Roman Catholic Church. Although the power of the Church in the region has been weakened as it faces increased competition from various strands of Protestantism, the Roman Catholic Church remains a potent force. The Church in Argentina, however, has been weakened because of its complicity with the brutal military repression of the 70s and 80s. In any case, polls show a considerable level of support for gay marriage in Argentina.

The issue I want to explore is how this development might deepen our understanding of constitutionalism. The meaning of a Constitution is fleshed out over time by different political actors. Americans fetishize the founding but what comes afterwards is equally, if not more, important. A constitution is an attempt to create a political community that can withstand the test of time. Scholars have for too long emphasized the role of courts in the job of constitutional maintenance. The work of the Warren Court (i.e., Brown v. Board of Education) played a crucial role in popularizing amongst intellectuals the idea that courts are the key actors in effectuating constitutional guaranties, particularly those of equality. The United States Congress obviously played a key role in ending segregation as well, however. The point is that courts (thankfully) have no monopoly over constitutional interpretation. The Argentine Congress showed how important democratic institutions can be to the protection of the rights of political minorities.

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Published on July 16, 2010
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The Law and the Social Reality of Other Constitutions

And you thought you knew nothing about the constitution of Morocco? By the time I am done with these posts, you will hardly remember that day. Below, another reflection on reading the constitution of Morocco and then traveling the country of Morocco:

The gap between constitutional reality and constitutional text can often be quite profound. By this, I mean the difference between certain fundamental, constitution-related symbols, signs and commitments around the country, representing the fundamental commitments of the country, and how they relate to the formal legal documents like the one from Morocco that I read thousands of miles in the air over the Atlantic Ocean. Although there is some debate (do super-statutes count? what about a political constitution?) about what counts as a legal constitution, there could also be such a thing as a “sociological” constitution. Walking around a place, you can see what sorts of symbols or norms or rules seem to be so fundamental as to achieve a constitution-like status. This might include some parts of the legal constitution (the First Amendment), some parts of the doctrinal constitution (“you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?”), and some fundmanetal social commitments that appear in neither place.

The one most notable distinction in Morocco between what we might call the sociological constitution and the legal constitution was the treatment of the King. The Constitution mentions the King, and grants the King power, but also constrains the power of the King. Article 1 talks about the “Monarchy” and Article 19 says that the King “shall be the Supreme Representative of the Nation and the Symbol of the unity thereof.” Article 24 gives the King power over civilian officials, stating that “[t]he King shall appoint the Prime Minister. Upon the Prime Minister’s recommendation, the King shall appoint the other Cabinet members as he may terminate their services. The King shall terminate the services of the Government either of its own initiative or because of their resignation.”

On the other hand, though, Article 1, the same text that first mentions the “Monarchy,” also says that “Morocco shall have a democratic, social and constitutional Monarchy.” Article 2 states that “[s]overeignty shall be that of the People who shall exercise it directly, by means of referendum, or indirectly, through the constitutional institutions.” As mentioned earlier, Article 3 discusses “[p]olitical parties, unions, district councils and trade chambers” and says “[t]here shall be no one-party system.” Article 7 talks about “the Kingdom” and discusses the motto of Morocco, which has the kingdom listed after God and country. Article 19 seems to give the King great power, but ultimately the King is entrusted with ensuring “respect for the Constitution. He shall be the Protector of the rights and liberties of the citizens, social groups and organizations.”

Yet everywhere I traveled in Morocco, the only pictures I saw were of kings, not of civilian officials. The many important Prime Ministers that have governed Morocco since its independence were never pictured anywhere we went as far as I could tell. Indeed, at one point in the Moroccoan city of Essaouria, a relatively cosmopolitan city on the Atlantic Ocean, I was part of a long conversation with a man who owned an art store there. He had traveled around Africa, had a son studying in France, and spoke wonderful English, as well as fluent French and Arabic. On his wall were pictures of kings, and when asked who the pictures were of, he laughed—-almost as if to suggest that it was obvious that the pictures on his wall were those of kings of Morocco rather than of anyone else.

Some level of reverence for the King, then, seemed to be part of the sociological constiuttion. The legal constitution gives the King power, but not the kind of power granted him by the merchant in Essaouria.

–DF

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Published on July 11, 2010
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Political Parties and Comparative Constitutional Law

Another thought inspired by reading the Constitution of Morocco:

Bruce Ackerman and others have written in the American context of how our Constitution says nothing about political parties, and the problems that has caused. Even given this, though, reading other constitutions is always enlightening because of the substantial attention it shines on just how much other constitutions talk about organizations beyond just the state, and how important these organizations are to these other constitutions.

The Constitution of Morocco, for instance, states in Article 3 that “[p]olitical parties, unions, district councils, and trade chambers shall participate in the organization and representation of the citizens. There shall be no one-party system.” I would predict that the creation and regulation of civil society groups like these groups mentioned in Article 3 is one of the main handful of topics addressed by the constitutions around the world. This is one of the many studies to conduct using the new dataset of constitutions created by Elkins, Ginsburg and Melton. The earlier constitutions, led by the eighteenth century American Constitution, focus on the formal institutions of The Constitution of Morocco, for instance, states in Article 3 that “[p]olitical parties, unions, district councils, and trade chambers shall participate in the organization and representation of the citizens. There shall be no one-party system.” I would predict that the creation and regulation of civil society groups like these groups mentioned in Article 3 is one of the main handful of topics addressed by the constitutions around the world. This is one of the many studies to conduct using the new dataset of constitutions created by Elkins, Ginsburg and Melton. The earlier constitutions, led by the eighteenth century American Constitution, focus on the formal institutions of the state (the legislature, the executive, and the judiciary). Later constitutions–particularly post-World War II constitutions–tend to focus on political parties and sometimes even other civil society groups.

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Published on July 9, 2010
Author:          Filed under: David Fontana, hp
 

Important Decision from European Court of Human Rights

As noted here, there was an important ruling on extradition-related matters from the European Court of Human Rights on Thursday.

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Published on July 9, 2010
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Televising Supreme Court nomination hearings

Elena Kagan’s nomination hearings have concluded and a vote in the Senate will occur shortly. Although the televised hearings were not the stuff of compelling political theater, they are somewhat exceptional. Polities around the globe have fashioned national high courts and written constitutions but public hearings over nominations are rare. Canada held its first public hearing in 2006. Commentators noted how dignified the hearing was compared to the United States but then Parliament lacks the power to block appointments. Germany, on the other hand, has vigorous debate and negotiations over appointments but these are conducted in secret.

The question is whether there is any democratic pay-off to having political actors debate nominations in public. When it comes to decision-making in a democracy, public discussions obviously matter since otherwise citizens lack the information to make informed choices. It is not clear, however, that publicized hearings for nominees adds any useful information. The Senators make remarks designed to mobilize their core constituents but which throw little, if any, light on what the job of the Supreme Court is and what qualities we might want in a prospective Justice. Light may be the best disinfectant in a democracy but some institutions, such as courts, perhaps operate better out of the glare of the cameras.

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Published on July 7, 2010
Author:          Filed under: hp, Miguel Schor
 

Serving up Constitutional Kaldreta in the Philippines

So you are the President. For five or eight or twelve years now thing have been humming along nicely and the people love/fear you (circle one). Then you see it. Tiny at first but becoming steadily larger – like an iceberg looming over your prow… term limits.

So what to do? Generally speaking you have three options to avoid giving up power.

You can write a new constitution doing away with the term limits, an increasingly popular route in the developing world, particularly Latin America.
You can suspend the constitution through a state of emergency – a route more common in Africa and parts of Asia.
You can attempt to stay on through sleight of hand… such as when Russia’s Vladimir Putin was able to keep power through arranging the creation of a new “uber-Prime Minister” position concocted especially for him.

As befits a nation with a cultural and ethnic mix of Asia, Africa and the Spanish Empire, former Philippines President Gloria Macapagal-Arroyo will be attempting to recapture power by mixing together all three strategies in a sort of constitutional kaldreta – a popular dish in the Philippines, involving pieces of chicken, pork and any vegetables you might have handy – stirred up as a sort of gumbo.

Mrs. Arroyo was recently required to step down after nearly ten years in office because of the presidential term limits set in the Philippines Constitution of 1987. Since then she has won a landslide election for a seat in parliament, and built up great influence in that institution. Her new constitutional initiative would suspend the 1987 document, and create a new one… one with a special “uber-Prime Minister” position, ostensibly just for her. The prime minister would effectively replace the president as supreme executive and potentially allow Mrs. Arroyo another spin on the merry-go-round… with the added bonus of shielding her from future prosecution (another iceberg.)

Benigno Aquino, the current President, has assured his supporters that Mrs. Arroyo does not have the support in parliament necessary to push this initiative through… Yet time will tell if a new era of Arroyo may yet bubble up from the kaldreta pot…

–Daniel Lansberg-Rodriguez

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Published on July 7, 2010
Author:          Filed under: Daniel Lansberg-Rodriguez, hp, Philippines, term limits
 

Free Exercise and State Establishment Redux

I have already received a number of interesting e-mails related to my earlier post, from those writing about religious freedom more generally as well as those who know about Morocco more specifically. Before I turn to the next series of posts, I wanted to address some lingering issues related to my first post:

(1) One of the bloggers on our blog, Ran Hirschl, has a new book forthcoming in the fall on this and related topics. I have followed it with great interest during its creation and so it should be a wonderful book.

(2) I did not mean to (as several commentators noted) give a full-throated endorsement of the liberty/state establishment duality, even though my first post can certainly be read that way. I do not know enough about this topic to have that strong of a normative position. In my post, when I write about how “successful” this duality has been, I mean something more basic: that the prevelance of this duality has surely increased in the past generation. It seems to be much more common and “successful” as tested by the market of constitutional ideas and transplants. I am not as sure if it is normatively desirable.

(3) Of course, much of the evaluation of this duality has to do with the demographic composition of a country. When countries are religiously homogeneous–as the overwhelming majority of countries are not–then there might be opposition to the formal establishment of a religion because the minority religious group will be more numerous, potentially more powerful, and more able to voice objections. At the same time, of course, one has to wonder in those instances if the objection to the formal establishment of religion has much to do with the formal establishment of the religion by the state or simply being a sociological minority.

It was very clear in Morocco, for instance, that there was a Jewish minority, and it was relatively small and powerless. In two towns, I saw the “mella” (the Jewish quarter of town), which was both small and very poor even for a poor country. Even in large cities like Marrakech (with a population of over a million), there were only about 300 or so Jews remaining, and by and large they were the Jews too poor or powerless to leave early. If the mella was larger and somehow more powerful, the duality might be evaluated differently. At the same time, I am not sure that the state establishment of Islam in Morocco was of anywhere near the relevance to the Jews in the mella in Morocco as was the fact that the country was 99 percent Muslim.

Which leads me to point (4) below….

(4) This leads me to a larger point, one I have wanted to make for a while and have made in discussing these topics with various colleagues: it is hard to have a universal theory of religon and constitutional law without taking into account state-society relations in a particular country or at a particular time. We can talk about “brining the state back in,” but how far back in the state is might matter quite a bit for any evaluation of religious liberty. The establishment of religion by the government–particularly in small amounts–might not that matter much in the United States because of the relatively smaller role the state plays in regulating society. In the United States, many key social functions have been delegated not just to private instiutions in general, but to religious institution in particular. Religious institutions have enormous control over marriage, over the provision of social welfare services, and so on. You can try and try to protect religious liberty by focusing on dis-establishing religion as practiced by the state, but unless you bring the state back in, dis-establishing religion as practiced by the state does not mean as much. By contrast, with a larger and more potent state (e.g. Western Europe), the degree of state establishment might matter a lot. Small differences in establishment matter more there because the state is so powerful.

Also, the legitimacy of the state might affect one’s evaluation of the establishment of religion. If the state is particularly respected, then state decisions have an outsized impact. In the United States, the state is not as respected or important as a symbol independent of its coercive and resouce capacity, so its messaging and expressive power is less. The reverse might be more true in places like Western Europe.

In this way, the United States might be very much like Morocco. In both places, the state does not matter that much. From my reading, the state in Morocco matters much more than in neighboring places, like Algeria or Mauritania, but not as much as in Western Europe. There surely is a state in Morocco, and it has a national presence that you would not see elsewhere. Even in remote villages in Morocco, I could see the new, notable and nice government buildings (with their signs often in French, indicators of the role that the French had in establishing the state in Morocco).

Because of these similarities between the United States and Morocco in terms of the power of the state, the decision to establish religion is of symbolic but not much practical importance because the state is less powerful. Also, the state has less reputational power, so its decisions might not have the outsized impact in the United States and Morocco that they might have, for instance, in Germany.

–DF

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Published on July 6, 2010
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Summer Travel and Comparative Constitutional Law

When they travel on vacation during the summer, people bring all sorts of things with them—-usually interesting things. They might pack a novel they have long wanted to read. Perhaps, as one of my friends now does, they bring materials with them to help them write a screenplay they have long wanted to compose.

I always pack the constitution of the country where I will be taking my vacation. I think reading the entire constitution of another country from time to time can be enormously interesting and helpful, to professors of comparative constitutional law and domestic constitutional law alike. It not only makes the country you are visiting more interesting, but also can highlight some larger trends in comparative constitutional law.

Last month, I traveled to Morocco, and so I read the constitution of Morocco. I will post a few items over the next week related to this constitution, which highlighted for me several larger things of note:

(1) Noah Feldman has written about this in the context of the Middle East—-and we now have the raw material thanks to the Elkins, Ginsburg and Melton database—-but it is about time that someone writes a major book about the growing trend in the past several decades to create constitutions that both permit the free exercise of religion and officially establish a state religion. This relationship seems anathema to scholars of American constitutional law, and even those foreign constitutions that American scholars seem to know either establish a secular regime (France, Turkey) or do not permit free exercise at all (less free places). But it strikes me that a successful and interesting development in the past generation has been the coupling of a Free Exercise Clause in a constitution with the opposite of an Establishment Clause. The Constitution of Morocco is an excellent example of this. The Constitution of Morocco states in its Premable that it is “[a]n Islamic . . . state” and in its Article 6 that “Islam shall be the state religion.” but also in Article 6 that “[t]he state shall guarantee freedom of worship for all.”

The social realities created by both a free exercise clause and a state establishment of religion are complicated, but seem to match the social reality of a world of increasing constitutional liberty and increasing religiosity. Individual citizens feel free to practice religion free from governmental coercion, but the combination of population patterns (which mean that people of like religious tend to live in the same country with other people of the same religion) and an increasingly religious world (meaning that religious homogeneity is socially prominent because religion is more socially prominent) mean that there is a constitution that matches the social reality: religious liberty coupled with the sense of the endorsement of religion (if not explicitly by the state, at least implicitly perhaps because of the dominance of a particular religion in a particular nation-state).

Morocco did not feel like a religiously diverse country. I saw no crosses and no Jewish stars while there. But there was also no sense of religious coercion, and I felt very comfortable talking to Muslim residents about my non-Muslim religious background. There was the social reality–matched by the constitutional language–of religious liberty.

On the flip side, it felt like a country with an established Muslim religion. That is in part because of demographics—-the population is 99 percent Muslim. In a place like Morocco (without an overwhelmingly powerful government with massive extractive and regulative capacities) even a formally established religion might not mean much if the government does not have the capacity to do much with that formal establishment of a religion. But it was more than that. There were places in Morocco where it was clear that Islam and the state intersected each other rather than avoiding each other.

–DF

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Published on July 6, 2010
Author:          Filed under: David Fontana, hp
 

Summer Travel and Comparative Constitutional Law

When they travel on vacation during the summer, people bring all sorts of things with them—-usually interesting things. They might pack a novel they have long wanted to read. Perhaps, as one of my friends now does, they bring materials with them to help them write a screenplay they have long wanted to compose.

I always pack the constitution of the country where I will be taking my vacation. I think reading the entire constitution of another country from time to time can be enormously interesting and helpful, to professors of comparative constitutional law and domestic constitutional law alike. It not only makes the country you are visiting more interesting, but also can highlight some larger trends in comparative constitutional law.

Last month, I traveled to Morocco, and so I read the constitution of Morocco. I will post a few items over the next week related to this constitution, which highlighted for me several larger things of note:

(1) Noah Feldman has written about this in the context of the Middle East—-and we now have the raw material thanks to the Elkins, Ginsburg and Melton database—-but it is about time that someone writes a major book about the growing trend in the past several decades to create constitutions that both permit the free exercise of religion and officially establish a state religion. This relationship seems anathema to scholars of American constitutional law, and even those foreign constitutions that American scholars seem to know either establish a secular regime (France, Turkey) or do not permit free exercise at all (less free places). But it strikes me that a successful and interesting development in the past generation has been the coupling of a Free Exercise Clause in a constitution coupled with the opposite of an Establishment Clause. The Constitution of Morocco is an excellent example of this. The Constitution of Morocco states in its Premable that it is “[a]n Islamic . . . state” and in its Article 6 that “Islam shall be the state religion.” but also in Article 6 that “[t]he state shall guarantee freedom of worship for all.”

The social realities created by both a free exercise clause and a state establishment of religion are complicated, but seem to match the social reality of a world of increasing constitutional liberty and increasing religiosity. Individual citizens feel free to practice religion free from governmental coercion, but the combination of population patterns (which mean that people of like religious tend to live near and in the same country with other people of the same religion) and an increasingly religious world (meaning that religious homogeneity is socially prominent) mean that there is a constitution that matches the social reality: religious liberty but the endorsement of religion (if not explicitly by the state, at least implicitly perhaps because of the dominance of a particular religion in a particular nation-state).

Morocco did not feel like a religiously diverse country. I saw no crosses and no Jewish stars while there. But there was also no sense of religious coercion, and I felt very comfortable talking to Muslim residents about my non-Muslim religious background. There was the social reality–matched by the constitutional language–of religious liberty.

On the flip side, it felt like a country with an established Muslim religion. That is in part because of demographics—-the population is 99 percent Muslim. The realities of establishing a state religion in a country like Morocco: without an overwhelmingly powerful government with massive extractive and regulative capacities, even a formally established religion might not mean much if the government does not have the capacity to do much with that formal establishment of a religion. But it was more than that. There were places in Morocco where it was clear that Islam and the state intersected each other rather than avoiding each other.

–DF

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Published on July 6, 2010
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Extraterritorial application of European human rights law to military action

The United Kingdom’s new Supreme Court has just rejected a claim by the mother of a deceased military serviceman that her son’s death while on duty in Iraq, pursuant to alleged negligence on the part of his superiors, violated the European Convention on Human Rights (ECHR). The British court held that the ECHR did not apply. The Smith family now plans to appeal to the European Court of Human Rights (ECtHR) in Strasbourg. Two noteworthy elements of the Smith case are, of course, (1) the effort to apply ECHR rights extraterritorially, and (2) the effort to regulate wartime conduct by a national government in particular. The New York Times has the story.

Here’s a thought experiment: try to imagine the U.S. Supreme Court, or any court, ever holding that international human rights law renders the United States liable for the death of its military personnel overseas or, indeed, for any kind of wartime conduct overseas.

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