Blog of the International Journal of Constitutional Law

2010 Annual Meeting of the Law & Society Association

The Comparative Constitutions Blog will be well represented this week at the Law and Society Association‘s Annual Meeting, held in Chicago’s Renaissance Hotel.

Here is a quick reference guide for those attending what promises to be fascinating conference:

Tom Ginsburg

Session: Constitutional Law and Judicial Review in Asia
Friday, May 28, 10:15am-12:00pm

Author: How Do International Human Rights Treaties Affect the Design of National Constitutions?
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Session: How Law Matters (or Fails to Matter) in Unlikely Places
Friday, May 28, 4:30pm-6:15pm

Roundtable Discussion: Courts and the Rule of Law in Authoritarian Societies
Saturday, May 29, 4:30pm-6:15pm

Ran Hirschl

Roundtable Discussion: Emergency: Political Liberalism and the Legal Complex in the Post-Colony
Thursday, May 27, 2:30pm-4:15pm

Mark Kende

Roundtable Discussion: Courts and the Rule of Law in Authoritarian Societies
Saturday, May 29, 4:30pm-6:15pm

David Law

Author: The Global Convergence of Constitutional Rights: An Empirical Analysis
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Zachary Elkins

Author: How Do International Human Rights Treaties Affect the Design of National Constitutions?
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Rosalind Dixon

Author: Constitutional Cascades
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Javier Couso

Roundtable Discussion: The Production and Dissemination of Legal Knowledge
Saturday, May 29, 8:15am-10:00am

Author: The Role of Constitutional Theory in the Transformation of Chile’s Constitutional Court
Session: Ideas in Action: Cultural-Ideational Forces and Court Reforms in Spain and Latin America
Sunday, May 30, 8:15am-10:00am

Claudia Haupt

Author: Animal Advocacy as Political Speech: A Comparative Perspective
Session: Animal Law: Theory and Context
Friday, May 28, 8:15am-10:00am

Richard Albert

Author: Constitutional Handcuffs
Session: New Perspectives on Comparative Constitutionalism
Saturday, May 29, 2:30pm-4:15pm

Session: Constitutional Law: A Comparative View
Sun, May 30, 10:15am-12:00pm

For location and other information, please consult the searchable database available here.

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Published on May 26, 2010
Author:          Filed under: hp, Law and Society Association;, Richard Albert


The New Republic has just posted a nice essay by Daniel Lansberg-Rodriguez about what he calls wiki-constitutionalism in Latin America: the tendency of constitutions in the region to be changed as easily as wikipedia pages. Lansberg-Rodriguez points out the costs of rewriting, and argues persuasively that institutional stability will require overcoming wiki-constitutionalism.

He also ties frequent change to longer constitutions; however, in our recent book on global constitutional endurance we found no such connection, at least when one looks at all countries and controls for other factors. Instead there seems to be a secular increase in the length of constitutions, independent of their endurance. This seems to be driven by an increase in the number and type of rights, as well as new and more complex institutional structures.

I also like this comment by ironyroad on the TNR blog: “The [U.S.] Constitution is an Enlightenment intellectual exercise written as a British Romantic poem. As if John Keats had thought long and hard about representation and the separation of powers. The Latin American problem is that their constitutions are magical realist novels written as legal documents.”


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Published on May 25, 2010
Author:          Filed under: hp, Tom Ginsburg, venezuela

Kagan Confirmation Controversy?

The U.S. Supreme Court confirmation process has become increasingly polarized. While the system in other countries is not free of problems, things in the U.S. reached a new low lately when several prominent news commentators essentially called on Court nominee Elena Kagan to address whether she is gay or not (Maureen Dowd in the New York Times, and Andrew Sullivan who has a popular blog). Fortunately Dahlia Lithwick of Slate responded, and pointed out that such information is largely irrelevant to the key confirmation issues, and may simply reflect the media’s desperate need to drum up something controversial. I have been struck by two ironies regarding the Dowd-Sullivan positions. First, the U.S. Supreme Court has protected gay rights under a right to privacy rationale. Yet Dowd and Sullivan do not respect Kagan’s privacy. Second, I don’t believe either Dowd or Sullivan were exactly supporters of trying to impeach Bill Clinton when revelations of his activities with Monica Lewinsky were disclosed. So that adds to the question of why this Kagan information is relevant. Hopefully, the actual Senate confirmation hearings will be more substantive, and include serious conversations about constitutionalism (and even the use of foreign law) without some of the Kabuki ritual of the Justice Sotomayor hearings.

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Published on May 20, 2010
Author:          Filed under: hp, Mark Kende

US Supreme Court debate to heat up again

With the decision in Graham v. Florida, we are likely to see a renewal of the debate over whether and how to use foreign caselaw in interpreting the U.S. Constitution. As in his earlier decision in Roper v. Simmons, 543 U. S. 551 (2005), Justice Anthony Kennedy again utilized foreign sources to interpret the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution. This case involved a juvenile who had committed an armed robbery, received probation, and then received a life sentence for violating the probation by participating in a home invasion. The question of whether a life sentence without the possibility of parole was appropriate for juveniles convicted of crimes that did not involve killing. Kennedy found that only 11 nations allowed for life sentences in theory and only two–the United States and Israel–use it in practice. All of the juveniles serving life sentences in Israel were convicted of homicide. Kennedy’s reliance on the material is as persuasive, not binding authority: “The Court has treated the laws and practices of other nationsand international agreements as relevant to the Eighth Amendment not because those norms are binding or con-trolling but because the judgment of the world’s nationsthat a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.”

Predictably, this provoked comment from the dissenting justices. Justice Thomas, joined by Justice Scalia, notes the earlier debate and points out that “present legislation notwithstanding, democracies around the world remain free to adopt life-without-parole sentences for juvenileoffenders tomorrow if they see fit. Starting today, ours can count itself among the few in which judicial decree prevents voters from making that choice.”

The propriety of the practice of looking to foreign law has been subject to extensive analysis, including in an excellent new book by Vicki Jackson of Georgetown. My prediction is that the decision will reignite the debate just in time for Solicitor General Kagan’s confirmation hearings: expect the question of the propriety of citing foreign law to be a central focus for Senators Kyl and Sessions.


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Published on May 18, 2010
Author:          Filed under: hp, Supreme Court of the United States, Tom Ginsburg

New Socio-Economic Rights Book

An important new book on socio-economic rights has just been published. The book is called “Socio-Economic Rights –Adjudication Under a Transformative Constitution.” It’s published by JUTA press. The author is Sandra Liebenberg, the Harry F. Oppenheimer Chair in Human Rights Law at the University of Stellenbosch Law School in South Africa. Professor Liebenberg was involved in the drafting of the South African Constitution and is one of the world’s experts on socio-economic rights, among other topics. The book’s focus is heavily on the South African Constitutional Court’s innovative jurisprudence in this area, but the book touches on other countries as well.

Here is a description of the book from the publisher:

“Drawing on a wide range of interdisciplinary resources, this scholarly work provides an in-depth
and thorough analysis of the socio-economic rights jurisprudence of the newly democratic South
Africa. The book explores how the judicial interpretation and enforcement of socio-economic rights can be
more responsive to the conditions of systemic poverty and inequality characterising South African
society. Based on meticulous research, the work marries legal analysis with perspectives from political
philosophy and democratic theory. Cautioning against a traditional, formalistic conception of rights
and the separation of powers doctrine, the author develops a nuanced conception of substantive
reasonableness review in the context of socio-economic rights. She further argues for a reconstruction
of private law doctrines in the light of the normative purposes and values promoted by socio-economic

Socio-Economic Rights – Adjudication under a Transformative Constitution is up to date, including detailed
evaluation and critique of the most recent socio-economic rights judgments. It is set to have an impact
on debates about courts and socio-economic rights not only in South Africa, but everywhere else where
its topic has attracted interest.”

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Published on May 7, 2010
Author:          Filed under: hp, Mark Kende

Rights at Work?

For those of us who grew up in times and places where “socialist” was not considered an insulting adjective, May Day still means something. And notably more so if a person happens to live in one of the 170 countries or so where the regulation of working conditions, hours, wages, etc. is loose at best. Since it is May 1, nostalgic or irrelevant as it may sound to some, a question comes to mind: how beneficial has the constitutional rights revolution been to workers’ interests or labor’s cause more generally?

The relations between constitutional law and labor have always been ambivalent. Lochner is often mentioned as an example of the uber-libertarian, social context-less conceptualization of rights. At least from the late 1970s to early 1990s, when the idea of economic liberalization was in vogue (Milton Friedman, Margaret Thatcher and so on), there seemed to be a deep, ideological affinity between the conception of rights as essentially negative liberties and neo-liberal, small-state social and economic thought. The dominant notion of rights as negative freedoms seems to be based upon a view of society as composed of an unencumbered, autonomous and self-sufficient private sphere, whose members’ full realization of freedom is constantly threatened by the long arm of the encroaching state. Deregulation and privatization, free and “flexible” markets (at least as long as no government bailout is needed), economic efficiency and fiscal responsibility (the latter often perceived as a call for reduced public spending on social programs) were all fundamentals of the 1980s and 1990s orthodoxy of economic neo-liberalism. These objectives share a close affinity with concepts such as individualism, social atomism, and near-existential fear of “big-brother” state that inform the hegemonic discourses of rights. And to that one may add the practical fact that “unregistered” workers (e.g. illegal immigrants) are often not entitled to many constitutional and legal protections that citizens or legal immigrants enjoy.

Having said that, my impression is that the last decade or so has seen some direction change, with the blatant anti-workers line of the 1980s giving way to a relatively more balanced approach by policy-makers and constitutional courts alike. The right to unionize, strike, picketing, or collective bargaining, and certainly issues such as safe or harassment-free working environment, or issues of equity in hiring, promotion, diversity, or entitlement to benefits are taken quite seriously by courts. Likewise, subsistence rights jurisprudence has had some positive implications on the constitutional status of workers rights. Still, it seems that the contemporaneous decline of the Keynesian welfare state and rise of individual rights discourse is not coincidental, and in some cases may even be two sides of the same coin.


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Published on May 2, 2010
Author:          Filed under: Labor rights, Ran Hirschl

Indonesia Blasphemy Ruling

As a follow up to my earlier post on this topic, Indonesia’s Constitutional Court has recently upheld the nation’s controversial anti-blasphemy law. To quote Chris Blake from the Associated Press, “The court ruled…that the 1965 law, which allows for criminal penalties and bans on people or groups that “distort” the central tenets of six officially recognized religions, was in line with the constutition and was vital to religious harmony.” The decision was 8-1. The majority said its job was to prevent the desecration of religions. Supporters of the law said defeat would permit deviant interpretations of Islam.

Critics said the law was vague, intolerant, and provides license for government. They also say the law violated basic freedom of religion principles. Indeed the dissenting judge said that the law could lead to discrimination and was written during a period when Indonesia’s dictatorial rulers were concerned about social disorder.

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

The Iraq Judiary: A Correction and Apology

I feel compelled to update my March 31 post about the Iraq Federal Supreme Court’s recent ruling on the meaning of “largest Council of Representatives bloc” in Article 76 of the Iraq Constitution. I maligned the Court for ruling that the phrase referred to post-election coalitions (multiple party lists that come together to form a government) rather than the party lists considered separately. Considered separately, Allawi’s Iraqqiya list, which won the most parliamentary seats in the March election, would enjoy first crack at forming a government. Under the new ruling Prime Minister Maliki’s State of Law list could join forces with another list (for example the Kurdish Alliance or the predominantly Shia INA), thereby constituting the “largest Council of Representatives bloc” to enjoy this privilege. I posited that the Court had succumbed to political pressure from the Prime Minister.

No doubt the Prime Minister was politically motivated when he took the matter to the Federal Supreme Court. That said, today I had the opportunity to discuss Article 76 with an Iraqi who in 2005 was a prominent member of the committee that drafted the Constitution. This individual is not politically aligned with either Maliki or Allawi, and if he had his way Maliki would not be the next Prime Minister. He contends the Court’s ruling is consistent with the drafters’ original intent. When I pointed out how this reading could be seen as contravening the will of the people he responded that it was so drafted so smaller parties that would likely never win a plurality of seats might still be key players (“king makers”) in the government. I have no reason to doubt his account of the historical record.

I apologize for any mischaracterizations in the March 31 post.

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Transitional Justice in Latin America: Recent Developments

Last Tuesday April 20, a federal court in Argentina sentenced former president Reynaldo Bignone to 25 years in prison for human rights abuses during the 1976-1983 “dirty war”. The Court also sentenced five other retired military officers to prison terms ranging from 17 to 25 years in connection with abuses during the military regime. These sentences consolidate the effort of coming to terms with the past in Argentina that, after many ups and downs since the transition to democracy (1983), got a definitive impulse since the arrival of Nestor Kirchner to the presidency in 2003. As soon as he took office, former president Kirchner fired 52 senior military officers, and during his first year of presidency 97 military personnel were charged with human rights violations and detained.

In recent years other Latin American countries have made important advances in judging the abuses committed during part autocratic regimes. In Chile, for instance, a country where for many years it was not possible to revisit the past, by 2009 judges had opened over 2,500 investigations and have convicted and sentenced 276 former security agents (data taken from Alexandra Huneeus. 2010. “Judging from a Guilty Conscience: The Chilean Judiciary’s Human Rights Turn.” Law and Social Inquiry, vol. 35, no. 1). Another recent interesting case is that of Peru, where televised trials of former president Alberto Fujimori also produced a jail sentence of 25 years for his participation in two episodes of mass killings that took place during his administration.

But not all countries in the region have been able to prosecute past abuses. For example, top military officers in Brazil recently objected the creation of a strong Truth Commission created y president Lula, effectively limiting its reach. There is also the frustrated attempt of former Mexican president Vicente Fox to prosecute the massive student killings that took place in 1968 and 1971 under the authoritarian regime of the PRI. Moreover, Bolivian president Evo Morales is currently trying to prosecute former presidents and other political figures using procedures that are closer to what Otto Kirchheimer called “victor’s justice” than to the exemplary trials in Argentina, Chile or Peru conducted by ordinary courts that effectively guarantee the procedural rights of the defendants.

These events, and the current trial in Spain against Judge Baltazar Garzón for, among other things, trying to investigate the crimes that occurred during the Franco regime, revive the question of the conditions under which transitional justice can take place. In any case, this week’s sentences in Argentina are a welcome development in the quest for coming to terms with the past in this region of the world.

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Published on April 23, 2010
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America, transitional justice

New developments in Japanese religion case

As noted in January, the Japanese Supreme Court held that Sunagawa city’s allowing the free use of its land by the Sorachi-buto shrine violated two provisions of the Japanese Constitution: Art. 20(1) (“No religious organization shall receive any privileges from the State, nor exercise any political authority.”) and Art. 89 (providing that “[n]o public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority”). However, the Supreme Court also reversed a removal order issued by the appellate court, saying that such a removal would prevent the believers of that shrine from exercising their religious freedom guaranteed by the other clause of Article 20(1) of the Constitution (“Freedom of religion is guaranteed to all”). The Court pointed out that the city could develop alternatives, including the possible sale or rental to the shrine of the portion of public land on which the religious establishment sits. As a result, the Court remanded the case to the appellate court at Sapporo, on the ground that the lower court failed to use the inquisitorial approach – which is allowed in administrative lawsuits such as this one – to remind the city of other possible alternatives.

Note that the suit was filed as administrative litigation and thus courts found no difficulty reviewing the case. The Local Autonomy Act allows a citizen to sue the prefecture and municipality in which he or she resides for constitutional violation by the local government. Unlike a civil action, the resident plaintiff can get a court judgment on the merits WITHOUT showing individual harm to his/her constitutional/statutory rights or legally protected interest.

On April 20, Sunagawa city announced that the city would sign a lease as suggested by the Supreme Court decision in order to dispel the questioned constitutional violation. The plaintiffs said that they would argue on remand that the only redress is the removal of the shrine from the city’s property. In my opinion, a lease in such case will not be a constitutional alternative-it remains the government entanglement with the religion.

–Tokujin Matsudaira, Tokyo University

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Published on April 22, 2010
Author:          Filed under: hp, Japan, religion