Blog of the International Journal of Constitutional Law

California’s gay marriage ban struck down as unconstitutional

American readers are likely to have heard this already, but this is sufficiently big to be of interest to readers elsewhere. Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California, originally appointed by George Bush Sr., ruled today that Proposition 8, an amendment to California’s constitution prohibiting gay marriage that was passed via ballot initiative by a 52% popular vote, violates the Equal Protection Clause of the Fourteenth Amendment. Judge Walker’s opinion concludes that Proposition 8’s prohibition of gay marriage lacks any rational basis (where mere discriminatory animus does not constitute a “rational basis”). Plenty of obvious echoes of Romer v. Evans, the Supreme Court’s earlier decision striking down Colorado’s constitutional amendment (also passed by popular initiative) that prohibited localities from enacting laws to protect gays from discrimination. Surprisingly, Judge Walker’s own sexual orientation has received little mention (as far as I can tell), which either reflects either very well or very poorly on the media, depending upon how one chooses to explain the omission.
I’ll go out on a limb and make some predictions here. The district court’s ruling contains many findings of fact (regarding, for example, the success of gay as opposed to heterosexual marriages) that, at least in theory, should make it more awkward for the 9th Circuit or Supreme Court to reverse the decision. That does not necessarily mean, of course, that the decision will stand; an appellate court that wants to overturn the ruling will undoubtedly find a way of doing so, deferential standard of review for factual findings be darned. But the way in which the district court’s opinion is written may force an appellate court to do a little fancy footwork (or be especially blunt on questions of law) in order to reach the desired outcome.
The District Court’s official webpage for this case, Perry v. Schwarzengger, is here. Quickie coverage/highlights from the opinion here.
Looking down the road, the next stop for this case will be the U.S. Court of Appeals for the Ninth Circuit (a.k.a. “the Ninth Circuit”; just try to count the number of ways the court’s name gets mangled in the media), which is required to hear the appeal as of right. There is a reasonable likelihood that whatever the initial (randomly drawn) panel of 3 judges concludes, the case will be reheard by an en banc panel consisting of eleven judges drawn at random from the full roster of the court’s active judges, over which Chief Judge Alex Kozinski (an often unconventional Reagan appointee) will automatically preside. A majority of the court’s active judges will vote on whether to rehear the case en banc. Notwithstanding the “renegade liberal” label that conservatives like to affix to the Ninth Circuit for political and rhetorical reasons, the Ninth Circuit is in fact rather closely divided along ideological lines, which makes the outcome at the circuit level difficult to predict with reasonable certainty. Eyeballing the roster of active judges, I end up with a quick-and-dirty count of – wait for it! – 11 Republicans who would vote to reverse versus 11 Democrats who would vote to affirm, with a couple of potential swing votes (namely, Judges Gould and Silverman, both nominally appointed by Clinton but under heavy duress from Senate Republicans. I am already counting Richard Tallman, nominally a Clinton appointee, as a Republican; his appointment was part of the price extracted by Republicans for Clinton’s concurrent appointment of Willie Fletcher to the same court. If anyone is interested, I can redo, and explain, my count more carefully.)
From there, the next stop will be the Supreme Court. If the Ninth Circuit affirms the district court, the odds that the Supreme Court will grant certiorari and decide the issue itself strike me as especially high. If the case is decided on the merits as opposed to procedural grounds, my guess is that Justice Kennedy might be willing to affirm the district court, given his authorship of both Romer v. Evans and Lawrence v. Texas, while the votes of the other 8 justices can all be taken for granted, which would make for a 5-4 squeaker.
No doubt there will be (is already?) more extensive coverage elsewhere, but hopefully this will be of interest to at least some of our readers.

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Published on August 5, 2010
Author:          Filed under: David Law, equality rights, gay marriage, gay rights, hp, Proposition 8

Looking like “yes” in Kenya

Kenyan citizens go to the polls tomorrow for an up and down vote on the new constitution. According to reports in the Daily Nation, voters are expected in record numbers. Despite early warnings from the government that funds were in short supply to support the election, ballots appear to be in place, a national holiday proclaimed, and security measures taken.

Polls have consistently predicted a comfortable victory for the “yes” contingent of about 30 points. One from five days ago had the “yes” side at 66% and no at 20%, with another 14% either undecided or determined not to vote. This is no surprise given the relative consensus among elites regarding the new higher law. The rivals President Kibaki and Prime Minister Odinga are both campaigning hard for “yes,” although at least three ministers have taken a stand for “no.”

Importantly, surveys have shown 85% of citizens saying that they will support the outcome, whatever it is, suggesting that Kenyans are either happy with or resigned to the new constitution. This consensus, at least as it translates into legitimacy, may well be the most important result of the election tomorrow.

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Published on August 3, 2010
Author:          Filed under: hp, Kenya, referenda, Zachary Elkins

The unstable presidentialization of Japan’s parliamentary system

Scholars sometimes speak of the presidentialization of parliamentary systems. Japan’s political constitution has been moving in this disrection since the election of Junichiro Koizumi in 2001. In the Japanese system, MPs of the leading parties function as a kind of “electoral college” choosing as Prime Minister NOT their de facto leader BUT rather someone popular with the voters for winning elections. Once elected, the populist PM has “authority” but lacks legal “powers” enabling him to keep his promise to voters. The executive power is vested in the cabinet. Thus, the PM is “checked & balanced” by his colleagues (cabinet ministers and ruling party’s MPs) on the political level and by bureaucratic officials on the administrative level.

The PM can hire and fire his ministers but has no power to “control and supervise” them. Though the PM may overcome this constraint by using his authority to directly appeal to the people (by threatening to dissolve the Diet), such a move is politically risky if a certain number of ministers/ruling party MPs are opposed to him (or his policy). Ironically, A PM who heavily relies on his “democratic authority” is considered to abuse of power and therefore becomes unpopular among the ruling party members.

The PM can control and supervise the administrative agencies, but has no power to appoint or remove agency officials. On this level, he is confronted by varied corps of bureaucrats constituting the permanent national government. This national bureaucracy, which holds the power to interpret the laws, draft bills and make policies, is highly autonomous. The PM does have powers as supreme organ of public administration, but by exercising PM’s administrative functions he degrades himself to “chief bureaucrat”; that is, the PM can trump bureaucracy only if his orders follow non-political, “neutral” norms shared by the bureaucratic part of the central government. It is the legal relations among organs of administrative bodies, NOT democratic authority, which rules the public administration. Besides, agency officials can oppose to the PM’s policies through ministers and mass media speaking for them. All these factors create a system in which the PM reigns but does not rule.

This quasi-presidential system creates tensions between the PM and ruling party. The populist PM is no more willing to cooperate with partisan politics inside the Diet, instead placing his legitimacy in the non-partisan “sovereign people”. He decides the agenda to be discussed in the election. If he wins, the PM tries to keep his promise by imposing the newest people’s command on partisan MPs, raising tensions between factions or parties. If he loses in upper-house elections, he will lose his control over his party. In the former case, the problem is that the people know little about constitutional restraint of PM’s power. They will withdraw their support if the PM fails to keep his word. As to the latter case, PM has little choice: either he goes back to play partisan politics (inside the ruling party or between the parties) which he is not good at, OR he relies on the non-partisan public administration to regain non-partisan popular support. In either case, PM will be politically weakened in the bargaining process- and the populist voters usually don’t want to see any bargain.

–Tokujin Matsudaira, Hitotsubashi University

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Published on July 26, 2010
Author:          Filed under: hp, Japan, Tokujin Matsudaira

Georgian President seeks new draft

Georgian President Saakashvili on Wednesday submitted to parliament a draft of a new constitution that would limit the power of the presidency. The opposition has opposed the move, and some speculate that Saakashvili is “pulling a Putin”: empowering a prime ministership for himself to occupy once his term ends. This is a perverse side effect of term limits that we have seen in a number of cases in recent years, as commented earlier by Daniel Lansberg-Rodriguez. The ironies abound if Saakashvili is indeed adopting the same strategy as Putin: the legacy of the 2008 war between the two countries continues.

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Published on July 22, 2010
Author:          Filed under: Georgia, hp, term limits, Tom Ginsburg

“… far more onerous than the restrictions found in this Nation.”

In McDonald v. Chicago, Justice Stevens stated in dissent that “the experience of other advanced democracies . . . undercuts the notion that an expansive right to keep and bear arms is intrinsic to ordered liberty. Many of these countries place restrictions on the possession, use, and carriage of firearms far more onerous than the restrictions found in this Nation.”

In Germany, petitioners today submitted a constitutional complaint challenging the federal law regulating arms (Waffengesetz) to the Federal Constitutional Court, arguing that the law – already considered one of the strictest worldwide – is unconstitutional because it impermissibly favors the interests of sport shooters over of the fundamental right to life, as reported here. According to the petitioners, deadly weapons must be prohibited for use in shooting sports.

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Published on July 21, 2010
Author:          Filed under: Claudia Haupt, Germany, guns, hp

Constitution-making in Somalia

A fascinating, first-hand account of current UN-led constitution-making efforts in war-ridden Somalia — arguably one of the bleakest, most dysfunctional corners of today’s world — is offered by Professor David Cameron of the University of Toronto’s Department of Political Science. Professor Cameron, a prominent scholar of Canadian federalism and inter-governmental relations, has long been involved in international efforts to draw on constitutional design and on bona fides multi-party constitutional consultations to mitigate strife in conflict or post-conflict hot spots such as Iraq, Sudan and Sri Lanka.


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Published on July 21, 2010
Author:          Filed under: HP; constitutional design, Ran Hirschl, Somalia

Veiled Equality and Secularism.

The New York Times recently described the newest developments in France to enact a prohibition on the wearing of the face veil. Some of the opposition of course came from religious groups. Meanwhile, as Miguel Schor has pointed out in a recent blog posting here, Argentina has essentially allowed same-sex marriage. Again, religious groups led the opposition. These are both victories for some notion of secularism, in the views of many. Yet it’s intriguing to think of the very different concepts of equality implicated by this secularism. In Argentina, one sees an equality as diversity approach. In France, one sees equality as a kind of homogeneity. These different notions of equality have been discussed by many scholars, but it is intriguing to see the divide in practice at the same time.

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Published on July 19, 2010
Author:          Filed under: hp, Mark Kende

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
Author:          Filed under: Uncategorized

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.


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Published on July 11, 2010
Author:          Filed under: Uncategorized

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