What’s wrong with mainstream constitutional theory? Among other things, it is neither comparative nor international, at a time when other countries and the international legal regime are in need of constitutionalization and might actually benefit from some applied theory. Here’s a rundown of the argument, with thanks to both the Constitution in 2020 and Balkinization blogs for hosting it.
Editors note: Comparativeconstitutions.org will on occasion post job and conference announcements, so long as they seem relevant to our mission. Below is a new announcement from NDI.
The National Democratic Institute for International Affairs (NDI) seeks to hire a lawyer or legislative staff professional with international law/legal experience to provide legal expertise in implementing the constitutional development components of its Somalia program. NDI is expanding its ongoing governance activities in support to Somalia’s legislative and executive branches as these transitional institutions develop their capacities. The position would be based in Nairobi, Kenya, with travel to Djibouti, Somalia and the broader region. This position is funded for one year with possible extension contingent upon availability of funding. The position would start October-November 2009.
NDI has been active in Somalia since late 2005 with programming supported by the United States Agency for International Development (USAID) and the Norwegian Ministry of Foreign Affairs aimed at building the core governance and parliamentary capacities of the Transitional Federal Parliament and the Transitional Federal Government. The Institute has worked with the Offices of the President and Prime Minister and the Speaker of Parliament, political and administrative heads of more than 30 ministries, and nearly 400 members of parliament (MPs) including two-dozen female MPs to develop governance and parliamentary capacities. With funding from USAID, the program will build the capacity of the Transitional Federal Institutions and independent commissions to develop constitutional-related legislation and engage the Somali public on constitutional issues. The program will focus on assisting Somalia’s Independent Federal Constitutional Commission (IFCC), Ministry of Constitutional Affairs and relevant parliamentary committees which are tasked with drafting a referendum law to support the broader participatory constitutional development process while working with a broad range of international actors. The program will also include civic education activities and public outreach including a public opinion research element intended to reflect the will of the populace and the unique political, social and economic circumstances of the region.
§ Provide technical advice on the development of the referendum law, and help ensure that Somalis engage in a broad-based, informed dialogue on the political system to be adopted;
§ Provide technical advice on the constitutional process to members of the IFCC, Ministry of Constitutional Affairs, relevant parliamentary committees and the Constitutional Consortium as well as other key leaders and national actors;
§ Improve the technical capabilities of the IFCC in drafting sections of the constitution on human rights including women’s, minority, and community rights;
§ Provide legal input to the constitutional process, including suggestions on language and formulation and comments on the overall cohesiveness of constitutionally-related documents;
§ Provide legal assistance in drafting transitional legislation – as defined and mandated in the Transitional Federal Charter – including laws on the constitutional referendum;
§ Provide comparative studies and options related to human rights to assist local partners in deciding what is appropriate for the Somali context;
§ Develop manuals when needed to facilitate activities, workshops, training sessions, etc;
§ Help identify consultants – international and Somali – to assist with the program and help oversee their work and activities;
§ Build and maintain relationships with counterparts in the Constitution Consortium, key Somali officials, civil society actors and other stakeholder groups;
§ Help draft field reports that monitor and measure program performance, results and political developments; and
§ Ensure programmatic goals are achieved and reporting requirements are adhered to. Qualifications § Law Degree (JD, LLB, LLM, etc.) and background strongly preferred;
§ Minimum of twelve (12) years relevant work experience in international development, community organizing, political campaigns, organizational development and/or legislative affairs;
§ Living or working experience outside of the U.S. preferred especially in extremely challenging political environments including the Middle East or Africa and/or experience working in conflict or immediate post-conflict environments;
§ Knowledge of and comparative experience in constitutional development, civic participation and political processes;
§ Experience in implementing programs funded by USAID and other bi- and multi-lateral donors;
§ Proven ability to communicate skills and experience to others as a trainer, advisor, or consultant;
§ Excellent networking skills, as well as the ability to conduct professional political relationships;
§ Excellent interpersonal skills and cultural sensitivity to effectively interact with all levels of staff, U.S. and foreign government personnel, members of donor organizations, funders, and policy makers;
§ Excellent oral and written communications skills to effectively present information, respond to questions and negotiate;
§ Oral and written fluency in English required;
§ Conversational, foreign language ability applicable to region preferred;
§ Proven analytical skills for interpreting complex program and political issues and to think innovatively and introduce new concepts;
§ Ability to inspire and motivate staff where results are clearly beneficial;
§ Working knowledge of PC-based word processing and spreadsheet applications with seasoned budget and accounting skills; and
§ Ability and willingness to travel to regional locations, which are often remote and difficult to reach.
The Resident Program Director will work with the Resident Program Manager and Resident Program Officer as well as full- and part-time national staff and will be supported by NDI’s Nairobi and Washington-based staff. This position reports to the Resident Director in Nairobi. Salary range is commensurate with experience. Benefits and a housing allowance are provided. The position currently is an accompanied post. Please visit our website to apply online at http://www.ndi.org/ or for more information contact Suzy Foster, ext. 6337, email@example.com.
Tom has graciously invited me to respond to his recent posting on Chinese constitutionalism, and in particular to his reference to my forthcoming book with Stéphanie Balme. He may well regret it, because while he himself has described the book in most gracious terms, I must take exception with certain possible implications that could be inferred from his description. In doing so, I readily acknowledge using him as a straw-man. But despite their logical problems, straw-men can be very convenient framing devices. Tom’s description of China’s constitutional possibilities recapitulates – admittedly without necessarily endorsing – a particular way of looking at constitutions comparatively. It is a way that is common, if not ubiquitous, to the comparative constitutional analyses I see emanating from the US, and often from the West more generally. And it is a way that I strongly believe we have to begin freeing ourselves from.
At least insofar as his opening paragraph is concerned, Tom seems to be portraying China’s constitution in exceptionalist terms. He notes that it appears to be “serving programmatic and ideological rather than constitutionalist ends.” He also notes that “rather than providing for enforceable rules constraining government, the constitution is used either to bless changes that have already occurred or to announce new policies to be achieved in the future.”
These descriptions of the Chinese constitution are true enough. They are also quite common, indeed omnipresent, in American descriptions and critiques of China’s so-called “constitutional” system. Perhaps for this reason, I therefore read these descriptions as possibly implying that a more archetypical constitution actually works to serve other functionalities (which I will describe in more detail below)—that the Chinese constitution, to the extent it could be said to have a “constitution”, is in this regard exceptional.
(In fact, Tom does indeed draws similarities between China’s constitutional experiences and those of Mexico—similarities that I myself explored in 2002. But the reference to Mexico still evinces the possibility of a kind of essentialism, i.e., the possibility that the Chinese / Mexican experience is essentially only relevant to what we might call “the Global South”. But as I shall argue below, Tom could just as easily have related China’s constitutional development to that of the US, or to the West more generally—and I also argue that such a parallel would have actually been a much more useful referent, because it would have more effectively challenged the parochial assumptions that infect and corrupt our efforts to understand and evaluate the full diversity and possibilities of “constitutionalism” that manifest in human experience.)
It is this vision of Chinese (or perhaps Global Southern) exceptionalism that I strongly challenge. I argue that as described by Tom, China’s constitution is by no means exceptional, even by the standards and experiences of the Anglo-European “West.” As I shall describe below, the problem is that the particular comparative referents identified by Tom in his first paragraph are anachronistic. At best, they describe a mature constitutionals system, not an emergent one. And at least insofar as these emergent constitutional systems are concerned, it is the conditions that Tom describes in the context of the Chinese constitution that represent the norm, not those of his comparative referent.
That comparative referent sees constitutions as archetypically (1) juridified (i.e., constructed out of “enforceable rules”); (2) textualized (Tom’s entire description of China’s possible normative constitutional options derives solely from the text of the 1982 constitutional document); and (3) permanent. My strong suspicion is that these particular conditionalities are American in origin: they resonate quite strongly with what American’s like to glorify in their own constitution (nb. I’m an American). The problem is that these particular tropes only really began to attach themselves to American constitutional consciousness in the 1880 (see Michael Kammen’s The Machine that Would Go of Itself), about the same time as American constitution was ascending to its present status as a virtually religious document (representing what we might call a “mature” state of constitutionalism). But as applied backwards (as they too often are), to the founding, these tropes are largely mythological. As well described by Gordon Wood in The Radicalism of the American Revolution, the American constitution during the first three or four generations was in fact very ideological (see, e.g., Federalists vs. Anti-Federalists), very programmatic (Federalism was itself very much a kind of conservative political program), and even very fluid and responsive to leadership change (see especially the emergence of “Jacksonian Democracy”). Just like China’s present constitution.
Of course, if all one looks at is the text of the 1787 constitutional document (and the Federalist Papers), one does not see any of this—hence the lasting success of the historical mythologizing of the 1880. This is the “textualization” part of Tom’s comparative referent. And like the others, textualization has been a defining feature of American constitutional pride since the 1880s. But in fact, the constitutional text was probably the least important component of our early constitutionalism. It is true that the constitutional text did not change much in the first 80 years of our constitutional history. But our constitutional nevertheless effectively transformed itself during the first 35 years of its existence. The constitutionalism of Jacksonian democracy was not only nothing like that which the Framers sought to enshrine, it was in many way exactly what they had sought to avoid in the drafting of the 1787 text. The fact that the same text could accommodate such radically opposed constitutional visions is itself a testament to its irrelevance as a juridical source of authority. This hypothesis is confirmed in the study by Michael Kammen referenced above, which argues that prior to the Civil War, the constitutional document of 1787 functioned primarily as a symbol for the new American state rather than as a juridified construction of that state.
Nor is the experience of the American founding unique in this regard. A similar story could be told about the emergence of modern Western constitutionalism in England in the 1730s; about its role in the establishment of France’s post-Revolutionary state; and about its radicalization in England in response to early industrialization. Together with the American founding, these represent the first four incidence of modern Western constitutionalism. And in none of them, did the emergent constitutions evince textuality, jurification, or permanence / stability. Insofar as constitutional emergence is concerned, China’s experience actually represents the norm. And what I think of as “the American trope”, i.e., that trope referenced by Tom in his comparative description of China’s constitution, is what is exceptional—if not actually mythological.
I write this because as someone who has spent a lot of time exploring what one might call comparative constitutional development, I am distressed by the degree to which comparative constitutional analyses continue to draw exclusively and uncritically from these canonical and often very idealized tropes that Americans developed and continue to use primarily to sanctify their own constitutional system. As comparative models, these tropes completely obscure the diversity of constitutional experiences and possibilities found in the world, and even in just the “West.” In fact, they obscure the diversity of important constitutional experiences found in the United States. They thereby create images of exceptionalism, and deviation, and often of simple and inevitable failure, where such do not actually exist. And in doing so, it greatly distorts our understanding of the full range of human “constitutional” possibilities that exist—especially insofar as those of the Global South are concerned, but also insofar as our own “Western” and even American constitutional experiences are concerned.
In this regard, I must confess that I find statements like Don Clarke’s purported description of China’s constitution as “the least important document in the Chinese legal system” quite depressing. I’m not certain I understand what Don exactly means by this, but reading him charitably, I suspect that he means that insofar as China’s positive legal corpus is concerned, the constitution is much less likely to be formally cited than are (other) positive legal instruments. And this is certainly true—as juridical text, China’s 1982 Constitution is non-justiciable. And political actors often act in ways that deviate from its textual commands, particularly insofar as protections of political rights are concerned.
But the idea of a “legal system” can encompass far more than its juridically-authoritative texts (see, e.g., Christine Parker et al.’s Regulating Law). And “importance” (and effect) can resonate in affects that escape formal juridical capture (see, e.g., the “Dreyfus affair” and the invention of laïcité in France). And seen in this broader light, China’s constitution, including its constitutional text, is in fact clearly very important—as evinced, for example, by the extraordinary willingness of a surprisingly large number ordinary Chinese citizens to risk their livelihood and their freedom to promote its particular relevance; and – quite frankly – also by the Chinese government’s own fears of such discussions.
(By contrast, the Chinese government has never found need to seize and detain critics of it’s Securities Law, of which there have been many; nor has anybody shown any willingness to go to jail over issues of its interpretation—this by itself suggests to me that insofar as the Chinese themselves are concerned, the constitution is a more important component of China’s “legal system” than is the Securities Law.)
The problem with Don’s claim, therefore, is that regardless of what he actually meant by it, it will inevitably be read, at least in the US, as confirming our received impressions that “constitutionalism” – meaning the concerns, behaviors, and normative influences associated with the emergence of what we today think of as “Western” ideas constitutionalism in England, the US, and France in the later part of the 18th century – is not and will never be a meaningful component of China’s present political system. This impression is the product of the mythological tropes that I have described above—the ones that Americans developed in the 1880s in order to celebrate and establish the secular-divine superiority of their own constitutional-political system. Don’s description, in other words, will invariably be read as confirming that China’s constitutional experience, if it can be called that, is unique; and is it not of a kind shared by American constitutional understandings.
But this is it most assuredly wrong. The deficiencies that Don appears to be referencing are deficiencies that are common to emergent constitutional systems everywhere, including those that would eventually found the countries that today comprise the developed “West”, and including those of the US.
In fact, the world, including the less comfortable parts of it, has a lot to teach Americans about the nature and possibilities of human constitutionalism. The proper response to discoveries of incidents of apparent constitutionalism in unexpected places — such as in China, or more recently, in Iran – should therefore be to cause us to critically reevaluate our own understandings of what is constitutionally possible, and hence of what is constitutionally “important,” particularly insofar as emergent constitutionalism is concerned. Far too frequently, however, as is particularly the case with China, our response is simply to dismiss or essentialize such incidents because they fail to conform to our own constitutional litergies—a practice that David Sciulli’s Theory of Societal Constitutionalism has criticized, specifically in the context of American constitutional analysis, as the “fallacy of exhausted possibilities.” (A classic example of this is Fareed Zakaria’s famous disquisition on what he called “illiberal democracy”.) I can’t speak for Stéphanie, but this was my ultimate purpose in putting together this book—in my dreams, it would cause people not simply or even primarily to begin rethinking the possibilities of constitutionalism in China; but more importantly, to begin rethinking the human possibilities of constitutionalism itself.
(In the real world, however, I just hope it will get me a few citations.)
China’s constitution has been described (by Professor Donald Clarke) as the least important document in the Chinese legal system. But constitutional discourse is clearly becoming more important in Chinese law politics, as highlighted by the recent high profile arrest and subsequent release of Xu Zhiyong, a lawyer associated with the Open Constitution Initiative. Like other communist documents, the Chinese constitution is usually described as serving programmatic and ideological rather than constitutionalist ends. That is, rather than providing for enforceable rules constraining government, the constitution is used either to bless changes that have already occurred or to announce new policies to be achieved in the future. One frequent pattern, found in the former Soviet Union and in China until 1982, was that new constitutions would be adopted with changes in leadership, as new leaders sought to announce their presence.
The 1982 Constitution, adopted shortly after Deng Xiaoping consolidated power and launched China’s modernization program, is an interesting document in this regard. Law played a central role in Deng’s thinking as he sought to provide greater institutional order to underpin China’s development. The 1982 Constitution de-emphasizes the Chinese Communist Party and nominally places the Constitution above all organizations in the country. Post-Deng leaders have modified the constitution through amendment, rather than replacement, preserving ideological continuity with Deng. Amendments have been used to mark ideological developments. For example, in 1988, the Constitution was revised to make reference to a privatesector to complement the “socialist public economy.” The 1993 amendments added the phrase “socialism with Chinese characteristics” to the preamble and introduced the “socialist market economy,” thus incorporating Deng Xiaoping’s formula into the document. In 1999, a reference to the recently deceased Deng was incorporated into the preamble. In 2004, the Constitution was amended to guarantee private property rights and provide for compensation for expropriated land, an important signal for both foreign investors and China’s own market sector. Human rights are also included, reflecting the Party’s ideological pushback against critics. In addition, in keeping with the tradition of each Chinese leader’s leaving his mark on the Constitution, Jiang Zemin’s theory of the Three Represents was introduced into the preamble. This provided ideological coverage for inclusion of the business class (“advanced productive forces”). It seems highly likely that a future amendment will incorporate the latest formula of the Harmonious Society that is the mark of current leaders, Hu Jintao and Wen Jiabao.
Our forthcoming book, The Endurance of National Constitutions, speculates that China’s 1982 Constitution might ultimately play a role not unlike that of Mexico’s 1917 Constitution. Mexico under the PRI regime had a constitution that embodied ideological continuity, but not constitutionalism. Over the long period of PRI rule, however, the constitution was frequently amended to co-opt and include new social forces as they arose. This led to gradually increasing congruence between the formal promises of the text and actual social practice. Eventually, when Mexico democratized in the late 1990s, the constitution was preserved and now operates as a more significant constraint on political actors, with both left and right wing parties relying on it in particular instances. The story shows the gradually increasing importance of a constitution within an authoritarian regime, under conditions in which there is a need for ideological continuity. To be sure, the analogy between China and Mexico is speculative, and there are important structural and ideological differences between the CCP and the PRI. But the Mexico outcome is at least one possible model for China.
More on the Chinese Constitution can be found in an excellent forthcoming book edited by Stephanie Balme and Michael Dowdle. No doubt we’ll have more to say about the topic when that book hits the shelves.
It’s rare for Japanese politics to get a lot of attention in the Western media, but this was admittedly no ordinary election. The Democratic Party of Japan (DPJ)’s trouncing of the Liberal Democratic Party on August 30 made the front page of the New York Times, the Washington Post, and so forth. The cover of this week’s Economist proclaims it “The vote that changed Japan,” complete with an illustration of a volcano erupting with a noise that transliterates as “Dokkaan!” (That is presumably the noise that Japanese volcanoes make; apparently, they sound different from our volcanoes.) Before: Japan had experienced one-party rule for half a century. Now: Japan may in fact have become a competitive multiparty democracy. Surely this is big news, is it not?
Far be it from me to declare that the entire Western press is wrong, but there are a number of reasons to be doubtful that the election was really a big deal, from either a constitutional law/judicial politics standpoint or, indeed, a broader policy perspective.
Let me put it this way. Last week, in what was hailed as a revolution in Japanese politics, the grandson of a former LDP prime minister defeated the grandson of a former LDP prime minister. The winning LDP-scion-grandson’s party, the DPJ, is more liberal at the rank-and-file level, but its leadership is drawn heavily from the LDP and, not coincidentally, rather conservative. The DPJ has struggled, and continues to struggle, to define a policy platform that distinguishes it from the LDP. And it will continue to struggle, because the DPJ is a stunningly heterogeneous coalition that makes the Rebel Alliance of Star Wars fame look drab and uniform by comparison; it includes both former Socialists and former members of the LDP who quit for reasons of personal ambition and internal party politics, all of them united by little more than the fact that they are not card-carrying members of the LDP. This motley coalition makes noises about wanting to break the stranglehold of the bureaucracy (good luck with that one) and achieve a more “equal” relationship with the United States (again, I’m not holding my breath). In my naive innocent way as a gaijin, I have tried to get various sophisticated Japan hands to tell me exactly how these parties differ. The answer always boils down to a lot of shoulder-shrugging. That old saw about old wine in new bottles comes to mind.
So, bringing this back to constitutional/judicial politics, there’s no reason to expect incoming Prime Minister Hatoyama to appoint liberal justices who will rouse the Japanese Supreme Court from its long slumber (by which I mean “coma”) in the area of constitutional adjudication. I have argued elsewhere that a Japanese prime minister has the capacity to change the direction of the judiciary much more quickly and sharply than any American president does, owing to such institutional variables as the frequency with which justices are replaced and the tremendous concentration of power in the hands of the Chief Justice and a coterie of his closest aides. I continue to believe that. I just don’t believe that Hatoyama has any inclination to make any meaningful changes.
The election was a non-event for Japanese constitutional/judicial politics in another way as well. As discussed previously in this blog, two of the justices facing retention election this time, Kohei Nasu and Norio Wakui, were the objects of a noteworthy campaign to defeat them for their failure to support equal voting rights in a recent electoral malapportionment decision. What was especially unusual about this campaign was that it was led in part by one of their former colleagues, Tokuji Izumi, who retired from the Court earlier this year. Historically, sitting justices have won their retention elections with 90% or more of the vote. One might have thought that this year would be an exception: even if neither justice was headed for defeat, perhaps they would at least squeak by with a much narrower margin that might in turn send a message to the justices that the public would like them to actually vindicate their constitutional rights in a meaningful way once in a while.
That sort of hopeful thinking would have been mistaken. The numbers are in, and the campaign did not make much of a difference. 7.45% and 7.73% of voters favored the recall of Justices Nasu and Wakui, respectively. The other seven justices who were up for reelection received “no” votes from between 6% to 6.72% of the electorate. I have yet to run the statistical tests to confirm that the difference is statistically significant. I suspect that it is. But even if it is, there is a difference between statistical significance and practical significance, and it is hard to say that Justices Nasu and Wakui have much practical reason to run scared from the liberals from now on. Moreover, viewed in historical terms, the opposition to Justices Nasu and Wakui was not all that high. The four justices who were up for election the last time around (namely, in 2005) garnered “no” votes from between 7.64% to 8.2% of voters.
On the one hand, perhaps a little public shaming goes a long way. Perhaps it feels bad to be singled out in public for being too conservative, and to know that one faced a bit more opposition as a result. On the other hand, perhaps it’s absurd to think that a pair of justices elected back into office with over 90% of the vote–and who are both facing mandatory retirement long before they would have to stand for election again–would care at all what their critics have to say. Even (especially?) if those critics happen to include a former colleague.
First, thanks to Zach Elkins and Tom Ginsburg, master scholars, impressarios of the great comparative constitutionalism project, and all-around good guys, for inviting me to guest blog on state constitutionalism and state con law.
Second, by way of introduction, I am the Minerva House Drysdale Regents Chair in Law at the University of Texas, recently decamped from California, where I spent many happy years on the San Diego and Berkeley faculties. I am hard at work on “State Constitutional Law and its Processes” (Aspen Press) and other projects within the same domain.
Let me begin by taking a stab at an answer to the question: “What are we expected to learn from the experience of American state constitutions about state constitutionalism worldwide?” The principal answer derives from the salient differences between state constitutionalism U.S. style and the well-investigated U.S. Constitutionalism. Some highlights:
(1) State constitutions are documents of limit; the U.S. Constitution is a document of grant. State governments possess plenary authority under the police power and the way that this authority, in theory and in practice, differs from federal authority under the more limited princple of delegated power is an interesting window into constitutional power on the ground;
(2) State constitutions have a plural executive. This means that executive authority is parcelled out among separately elected officials (e.g., attorneys general, treasurers, elected lieutenant governors, peculiarly focused officials such as insurance commissioners, fish & game chiefs, etc.). This is by contrast to the so-called “unitary executive” at the national level. The comparative dimenions of this very different approach to administrative authority, separation of powers, regulatory performance, and democratic accountability is, while fascinating, an inexplicably neglected issue in contemporary political science and law. For exceptions, see Roger Noll and Bruce Cain’s work on this topic, and also the superb article by Tom’s colleagues Jake Gerson and Chris Berry in Volume 75 of the U. Chicago Law Review on “the unbundled executive.”
(3) State constitutions contain “positive” rights. These rights include, in all 50 states, a right to education (the source of enormous legal controversy, to be sure) and, in many states, social welfare rights of various types and scope. In this respect, American state constitutions share much in common with constitutions in other countries, such as South Africa, Brazil, and the former Soviet states. The range of comparative constitutional questions involving the origins and performance of positive rights in state constitutionalism are vast indeed.
There are many other interesting features of state constitutions; and there are, too, contemporary controversies (see, e.g., the post-Kelo property rights revolution, same-sex marriage, and the drumbeat for a state constitutional convention in California and New York) that are worthy of scrutiny the context of debates and analysis of constitutionalism worldwide. Or so I hope to illuminate in my stint on this blog. I will look forward to, if not providing particular wisdom on these subjects, at least raising some intriguing questions.
Yesterday, the Supreme Court of Montana heard argument in Baxter v. State of Montana (Case No. DA 09-0051), an appeal by the state of Montana against a decision by a district court judge, Judge Dorothy McCarter, recognizing a right to physician assisted suicide under the Montana state constitution. (The U.S. Supreme Court in Washington v. Glucksberg, 521 U.S. 702 (1997) declined to recognize such a right as fundamental under the Due Process clause of the U.S. Constitution.)
How the Montana Court approaches this case will be an important test of how deep the current commitment is, in the U.S., to engagement with comparative constitutional experiences and materials. The Montana Constitution is the only constitution in the U.S. to contain an explicit guarantee of individual “dignity”, and that guarantee was the basis of the district court’s decision in the case. Given the importance of dignity-based reasoning in most international and many comparative contexts, as well as recent developments in this area globally, it is therefore hard to think of a more natural case for comparative engagement by a state court in the U.S., under a state constitution. (Vicki Jackson makes this point in a more general context in a great article, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 Mont. L. Rev. 15 (2004).)
Whether or not the Montana Court looks to recent global judicial developments, such as the decision of the UK House of Lords in R (Purdy) v. Director of Public Prosecutions (see Cheryl Saunder’s excellent summary of the decision in her post of 08.06.09), or broader comparative sources focusing on the nexus between dignity and the right to die, such as the South African Law Commission’s Report, Euthanasia and the Artificial Preservation of Life (1998) (http://www.saflii.org/za/other/zalc/report/1998/7/), will therefore be a key test of where we now stand in the U.S. when it comes to comparative engagement by U.S. courts after both Roper v. Simmons, 543 U.S. 551 (2005) and the Congressional debate that followed it.
If one looks at the amicus briefs filed in Baxter case, there is also, unfortunately, limited cause for optimism about what the result of this test will be. (For amicus briefs supporting the appellant, see e.g. http://www.compassionandchoices.org/act/legal_work/baxter; and for those supporting the respondent, see http://www.aul.org/MT_Baxter_v_State#AUL). On my admittedly brief reading of the briefs, it seems that while some mention foreign materials, none make use of such materials as a potentially persuasive source of argument. I would, of course, welcome being corrected by someone more versed in the details of the briefs.
A couple of weeks after Justice Sotomayor’s nomination to the U.S. Supreme Court was confirmed, another, longer and more intense struggle over judicial appointments has reached its quiet ending, with the appointment of three new justices to the Supreme Court of Israel.
Israel is arguably one of the prime examples of what I have termed elsewhere “juristocracy”. Not a single week passes by without the Supreme Court issuing a major decision on matters of high politics, key public policy issues, the future of prominent politicians, and so on. This activism reflects a confluence of institutional, ideological, and socio-political factors that are beyond the scope of this forum (I, and others, have written about these issues in other forums). Most political opposition to the Court has come from either right-wing nationalists who view the Court as being too “leftist”, unrepresentative, and “counter-majoritarian”, or Jewish orthodox circles who accuse the Court of forwarding its own liberalizing anti-religious agenda. In a recent statement, one of Israel’s main religious leaders said that “the courts are twisted and the judges don’t believe in anything. They are apostates.”
As long as Aharon Barak – the former proactive Chief Justice and arguably the most influential, philosopher king-like, figure in Israel’s constitutional history – lead the Court, it was able to block attempts to appoint anti-activist judges. However, Barak reached mandatory retirement age (70) in 2006, and was replaced by the somewhat less influential CJ Dorit Beinish. The backlash against the Court started to yield some results. In 2007, the (some say personal) rivalry between then Minister of Justice, Daniel Friedman, and the new CJ Dorit Beinish triggered the introduction of a law that limits the incumbency of chief justices to seven years. In 2008, a new law was introduced by anti-activism politicians that requires a “super majority” of seven votes in the nine-member appointments committee to approve a new appointment to the Supreme Court. Because five members of the committee are incumbent Supreme Court judges (3) and representative of the bar association (2), the new procedure necessitates support for an appointment from the “political” component of the committee – the Minister of Justice, another minister, and two Knesset (parliament) members. And in June 2009, the political backlash against the Court reached another peak when two nationalist right-wing MKs critical of the Court’s “unrepresentative” composition and ideological tilts were elected to the nine-member judicial appointments committee, thereby further threatening the old establishment’s grip over the Supreme Court composition and interpretive direction. At that point, a high noon-like confrontation, and possibly a long-term stalemate in judicial appointments seemed inevitable.
In the end, though, the need to address thousands of cases every year, as well as the system’s self-correcting, survival instincts triumphed. Despite the rhetoric to the contrary, compromises by all sides eventually broke the deadlock in the Judicial Selection Committee and led to the appointment of three new Supreme Court justices: Tel Aviv District Court Judge Uzi Fogelman, Haifa District Court Judge Yitzhak Amit and US-born Beersheba District Court Judge Neal Hendel to fill the three vacancies on the 15-judge court. All are experienced judges; none is a zealous ideologue. CJ Beinish is reported to have gotten her first choice, Fogelman, whom she has known since their days together in the State Attorney’s Office. At the same time, she and the rest of Israel’s “court-party” were forced to yield on the principle that only district court judges who had served nine-month trial periods on the Supreme Court could be eligible for permanent appointments. (This practice never applied to non-judges – lawyers or legal academics – appointed to the Court). The right-wing backlash against the Court could not yield a true revolution in the Court’s attitudinal tilts. But critics of the Court’s unrepresentative composition found solace, according to the Jerusalem Post, in the fact that “never before has a majority of the judges been chosen not at the initiative of the president of the Supreme Court and despite her efforts to foil the election”. The Committee also quietly selected 21 new district court judges. In short, a rather anti-climatic, pragmatist ending to a fierce war of words that lasted a few years.
Even close observers of Chile’s constitutional politics were taken by surprise when an electronic newspaper (‘El Mostrador’) reported a few weeks ago that the new President of the Constitutional Court had been the director of DINACOS (an agency organized during Augusto Pinochet’s regime to implement censorship).The new head of the Constitutional Court, Marcelo Venegas, had cultivated a low profile since arriving at the Court, in 2006. He became a member of it as a result of a close-door negotiation between the government coalition and the opposition.Venegas, an undistinguished member of the Chilean legal profession, spent most of the time since the end of the authoritarian regime as an obscure legislative assistant to congressmen of Renovacion Nacional, one of the two political parties of the opposition.The scandal that the information of Venegas’ past created in Chile’s legal and political circles did not, however, make any difference, since neither the new President nor his colleagues at the Court felt the need to revise the decision. Thus, Chileans will have to accept that the head of the body charged with advancing fundamental rights made a living censoring independent media during the country’s most brutal dictatorship in history.Venegas’ appointment to the top post at the Constitutional Court represents yet another blow to the already low prestige enjoyed by the Court, after a year marked by mostly conservative decisions, such as the 5-4 ruling prohibiting the distribution by the government of the so-called ‘morning-after pill’, on the ground that it is an abortive medicine.