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I·CONnect

Blog of the International Journal of Constitutional Law

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
Author:          Filed under: Uncategorized
 

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
Author:          Filed under: Uncategorized
 

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
Author:          Filed under: Uncategorized
 

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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German Right to Die Case and Supreme Court Confirmation

As has been reported in the press, the Federal Constitutional Court of Germany recently issued a ruling making it easier for relatives and others to allow loved ones to die in certain situations. Given the power of the right to dignity and the right to life under the Basic Law, this is significant both there and abroad. The Court reversed the conviction of a lawyer who apparently counseled a client regarding the question of deactivating the intravenous tube of a loved one in a persistent vegetative state. Meanwhile, Solicitor General Elena Kagan is being questioned vigorously in her U.S. Supreme Court confirmation hearing about whether she would look to foreign law in constitutional matters. The German case shows the advantages and dangers. On the one hand, it suggests a growing international consensus regarding the importance of individual autonomy on such matters (the PVS woman had earlier expressed a desire to not be kept alive if such a thing happened). On the other hand, the German jurisprudential and cultural context is quite different so any comparisons must be cautious. Kagan has implied she is not hostile to foreign law, but has tried to downplay the issue.

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Published on June 29, 2010
Author:          Filed under: hp, Mark Kende
 

and Kyrgyz Republic passes the Constitution

Vote-counting is well under way in Kyrgyzstan. With 90% of precints counted, news reports indicate over 90% support for the new Constitution. No doubt this will be seen as a vote of confidence in the interim Otunbayeva government. Russia’s President Medvedev expressed skepticism about the ability of the parliamentary system to resolve Krgyzstan’s difficulties, including the ethnic cleansing of the Uzbeks in the south. I suppose the conventional wisdom would likely go the other way, emphasizing the ability of a parliamentary model to provide some representation for the minority group, though as with many such claims, much depends in the end on the party system.

–TG

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Published on June 28, 2010
Author:          Filed under: hp, Kyrgyzstan, Tom Ginsburg