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I·CONnect

Blog of the International Journal of Constitutional Law

The Curious Conservatism of Constitutional Amendment Politics in the United States

—Andrea Scoseria Katz, Washington University in St. Louis School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

A few days ago, an email popped into my inbox. It was a very typical email, the kind you delete dozens of every day: a watchdog group was soliciting money to fight back against “extremist” attacks on the Constitution. (However true the point about the U.S.’s constitutional health, this kind of language—plus the usual deluge of such emails—tends to stultify you after a while.) What did catch my attention, however, was the subject line: “The threat of an Article V Convention.”

The United States constitution is famously difficult to change.[1] Its amendment rule, found in the fifth article of the text, requires the assent of two-thirds of each legislative house plus three-fourths of the legislatures of the fifty states.[2] These demanding supermajorities are compounded by an amendment culture that tends strongly toward conservatism.[3] As early as 1862, a critic faulted Article V, not only for failing to stop the Civil War but also for quashing the spirit of American democracy: “Perhaps it may turn out that the article, instead of an instrument, as was intended, is an iron fetter, that must be broke, before free action can be attained.”[4]

All of which lends, in 2020, a certain irony to the warnings about constitutional revision sent to me by CommonCause, a progressive activist group whose own website loudly touts the fruit of its campaigning this year: “DEMOCRACY PREVAILS.” Democracy did, presumably, prevail in America in 2020 (notwithstanding the terrifying spectacle of an incumbent American president challenging the results of a free and fair election). But why does the thought of opening up the U.S. Constitution to stiffer currents of democracy elicit such panic in the left?

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Published on December 23, 2020
Author:          Filed under: Analysis
 
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What’s New in Public Law

–Pedro Arcain Riccetto, Postdoctoral Fellow at the University of Oxford.

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The US Supreme Court rejected Texas-led case to overturn Joe Biden’s victory in the presidential elections held last month.
  2. The Austrian Constitutional Court ruled that a law banning girls aged up to 10 years from wearing headscarves in schools is discriminatory.
  3. The Supreme Court of Brazil authorized the use of restrictive measures against citizens refusing to take COVID-19 vaccines.
  4. The US Supreme Court dismissed a challenge to leave undocumented immigrants out of the final census count.
  5. The Romanian Constitutional Court annulled a law banning gender studies in all arms of the country’s educational system.

In the News

  1. Ukrainian President Volodymyr Zelensky says global judicial reform will start from next year.
  2. Nepal’s President dissolves Parliament at the request of Prime Minister Sharma Oli’s cabinet and announced that general elections would be held in April and May 2021.
  3. Albania’s Justice Appointment Council sends a list of three Constitutional Court candidates for selection by the Parliament.
  4. The Court of Justice of the European Union rules Hungary’s asylum policies unlawful.
  5. In Sudan, thousands protest demanding acceleration of political reforms on the second anniversary of the uprising that ousted Omar al-Bashir.

New Scholarship

  1. Tom Ginsburg and Aziz Z. Hug (eds.) From Parchment to Practice: Implementing New Constitutions (2020). Cambridge University Press (analyzing the variable nature of conflicts that arise when a new constitution is adopted and the diverse means through they are mediated, whether successfully or not)
  2. Mark A. Lemley, Chief Justice Webster (2020) American Journal of International Law (forthcoming), Working Paper (discussing a historical test case for the use of dictionaries to interpret legal documents)
  3. Sandra Botero, Trust in Colombia’s Justicia Especial Para la Paz: Experimental Evidence (2020) Journal of Politics in Latin America (relying on experimental methods to explore whether features of the case and ruling party play a role in citizens’ attitudes towards Justicia Especial Para la Paz, Colombia’s transitional justice tribunal)
  4. Daniel Esty, Laurent Fabius, and Douglas Kysar, Courts, Climate Change, and the Global Pact for the Environment (2020). Working Paper, Global Constitutionalism Seminar at Yale Law School (debating what role courts play and what remedies they could or should provide in response to climate change)
  5. Yanilda Gonzalez, Authoritarian Police in Democracy: Contested Security in Latin America (2020). Cambridge University Press (examining the persistence of authoritarian policing in Latin America to explain why police violence and malfeasance remain pervasive decades after democratization)
  6. Armin von Bogdandy and others, German Legal Hegemony? (2020) Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-43 (discussing whether or not German legal hegemony is a matter of concern in contemporary EU law and, if so, what can be done about it)
  7. Jeffrey Pojanowski, Reevaluating Legal Theory (forthcoming 2021). Yale Law Journal (developing and rendering explicit a social theory for jurisprudence that takes both dimensions of law’s moral life and factual existence seriously)
  8. Zoe Robinson, Patrick Leslie, Jill Sheppard, Judicial Ideology in the Absence of Rights: Evidence from Australia (2020). Working Paper (investigating whether apex court judges behave ideologically in cases not involving civil, political, or economic rights).

Calls for Papers and Announcements

  1. The Global Summit, hosted by the International Forum on the Future of Constitutionalism and sponsored by the Constitutional Studies Program at the University of Texas Austin, invites all to register for its online sessions that will be held over five days from January 16 to 21, 2021. The event is structured around 12 Plenary Lectures, 100 concurrent sessions, and three special prize presentations, and offers an opportunity for scholars of all ranks around the world to exchange ideas on constitutionalism.
  2. The Supreme Court of Brazil invites all to read its Case Law Compilation on COVID-19, a publication that selected, summarized, and translated into English recent decisions the Court has rendered until October 2020 addressing the COVID-19 pandemic.
  3. The OECD Public Governance Directorate organizes the webinar “Trust, Institutions and Resilience: Opportunities for recovery”, to be held on 19 January 2021. The webinar will explore the dynamics of public trust, its causes, how it facilitates and hinders policy responses during the COVID-19 pandemic, and the likely effects of government’s responses on people’s confidence and compliance with policies. The event is open to the public, but pre-registration is required.
  4. The IACL-AIDC Virtual Roundtable “Democracy 2020: Assessing Constitutional Decay, Breakdown and Renewal Worldwide”, held from 18 to 26 November 2020, launched the Conference e-book and Webinar recordings online. Access the materials here.
  5. The Latin American Centre at the University of Oxford offers part and full scholarships to attract students who would not otherwise be able to take the Msc or MPhil courses in Latin American Studies. Applications may be submitted by 22 January 2021.

Elsewhere Online

  1. Peter Nielse, Constituent Power: A symposium – Introduction, Verfassungsblog.
  2. Nicholas Reed Langen, Reforming the Supreme Court, UK Constitutional Law Association Blog.
  3. Swati Jhaveri, The Coming Age of Constitutional Judicial Review in Singapore: The Advent of “Proportionality”?, IACL-AIDC Blog.
  4. Eric Posner, America Passed the Trump Stress Test, Project Syndicate.
  5. Sarath Sanga and David Schwartz, Tear Down this Judicial Paywall, WSJ Opinion.
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Published on December 21, 2020
Author:          Filed under: Developments
 

Slovakia on its way to Illiberal Democracy: Nullifying the Power of the Constitutional Court to Review Constitutional Amendments

–Tomáš Ľalík, Associate Professor, Department of Constitutional Law, Comenius University, Bratislava

On January 30, 2019, the Slovak Constitutional Court (“SCC”) passed its landmark judgment PL. ÚS 21/2014 in which it annulled a part of the constitution. With the constitution silent on the issue, the SCC claimed the power to review constitutional amendments. In the reasoning it adopted the basic structure doctrine developed by the Indian Supreme Court with additional features. On December 9, 2020 the parliament adopted a constitutional amendment banning explicitly the SCC from reviewing the amendments.

This short piece deals with some pitfalls of the amendment in respect of the court’s asserted power. As I try to sketch below, given a great flexibility of the Slovak Constitution, the passing of the amendment in question has made the parliament an unbound constitutional-maker that is neither in line with constitutionalism nor with democracy. Aside from that, the amendment represent a sharp regress in terms of rigidity of the constitution when compared to status quo.n

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Published on December 18, 2020
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Book Review: Orlando Scarcello on “Populism and Democracy” (Sascha Hardt, Aalt Willem Heringa and Hoai-Thu Nguyen, eds.)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Orlando Scarcello reviews Sascha Hardt, Aalt Willem Heringa and Hoai-Thu Nguyen’s book on Populism and Democracy (Eleven Publishing, 2020).]

—Orlando Scarcello, Postdoctoral Researcher in Public law, LUISS Guido Carli, Rome.

What is populism and what does it have to do with democracy? Questions of this kind are more and more common these days. Unprecedented political movements have risen in the West and beyond in the last decade, characterized by an ambiguous relation with democracy. While on the one hand they often recall a direct connection to “the people” as a source of political legitimacy, on the other distrust towards the constitutional liberal-democratic status quo has been repeatedly shown by the so-called “populist” movements. What are they then? The guardians of a new kind of democracy for the XXI century or an extremely dangerous threat, a corruption of democracy as experienced in post-WWII constitutionalism?

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Published on December 17, 2020
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10 Good Reads

—J. H. H. Weiler, New York University School of Law; Co-Editor-in-Chief, I·CON

This has been an unusual year (and that must be the euphemism of the year). I have not been to my office since February and have had no access to the pile of new books and the even greater pile of older books waiting to be read. There is, however, also a silver lining (there always is, isn’t there?), at least in this case for those without COVID-exacerbated care responsibilities, and with the privilege of adequate time and resources. Though most of my law books and books about the law are kept in my library-within-the Library at NYU Law School, some migrate home with my noble intentions of reading them there but are then forgotten, forlorn, on the shelves. This unusual year has offered redemption to a great many of them. 

I want to remind my readers that the criterion for selection is not “good books” but “good reads” where the pleasure factor predominates. There are many excellent law books that one does not associate with the almost sensuous “pleasure” associated with reading, say, a good novel—the tactile feel of the pages, the aroma of books, both new and old, the snuggly feeling of being curled up on the sofa with a novel or poetry book, and the supreme pleasure of forgetting about the office and note taking and law …

 One “innovation” in this year’s list is a recommendation of a children’s book, though of the genre that adults will enjoy no less, or perhaps even more, than their children.

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Published on December 15, 2020
Author:          Filed under: Editorials
 

Dicey After Brexit: Mini-Maximalism at the United Kingdom Supreme Court

—Yvonne Tew, Georgetown University Law Center[1]

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

On December 1, 2020, the United Kingdom Government published draft legislation to repeal the Fixed-term Parliaments Act 2011, which would revive the prerogative power to dissolve Parliament.[2] The Prime Minister would acquire the power to call general elections at will at any point during the parliamentary term. That power would be unchecked by the courts: the Bill specifically provides that the courts cannot question the exercise of that prerogative power.[3] And so Boris Johnson’s government fired its latest shot in an ongoing battle over where power should lie in Britain’s constitutional governance.[4]

When Boris Johnson replaced Theresa May at Downing Street last year, he promised to “get Brexit done” by October 31, but was blocked by Parliament. In response, Johnson prorogued Parliament, suspending the legislative body for five weeks, a move that many viewed as an attempt to prevent Parliament from scrutinizing a “no deal” exit from the European Union in the final weeks leading up to Brexit.[5]

In an extraordinary decision delivered in September 2019, the United Kingdom Supreme Court unanimously ruled that the Prime Minister’s prorogation of Parliament was unlawful. [6] All eleven justices in Miller II held that the judiciary could review the scope of the prorogation power, dismissing the government’s argument that the Prime Minister’s advice to the Queen to prorogue Parliament was a political question outside the court’s judicial sphere.[7] Lady Hale, the Supreme Court’s President, declared that the Prime Minister’s prorogation of Parliament unlawfully frustrated or prevented “without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as a body responsible for the supervision of the executive.”[8] Reading the Court’s single-voice judgment on live television—and sporting a now famous spider brooch[9]—Lady Hale put the Court’s ruling starkly: “This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper.”[10]

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Published on December 9, 2020
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Violation of Constitution has no Consequences, Rules Supreme Court of Maldives

—Ahmed Nazeer, P.h.D. Researcher in Public Law, University of Portsmouth 

Introduction 

The Maldives Supreme Court has ruled that violation of the constitution has no consequences unless the constitutional clauses explicitly stipulates a penalty. The ruling was part of the court’s justification in refusing disqualification of a government MP that decided to hold a position prohibited undersection 73(d) of the Maldives constitution. The court judgment (2020/SC-C/78, 2020/SC-C/79) was a case filed by an individual at the Supreme Court seeking a ruling that government MP Yaugoob Abdulla was disqualified under the constitution following his appointment to the council of the Institute of Chartered Accountants of Maldives –  a regulatory body formed under a parliamentary legislation (Law Number: 13/2020). The Supreme Court failed to provide a sound justification of how the justices arrived at the decision. However, since the tenure of Supreme Court justices hinge on parliamentary support, the risk attached to going against the government super-majority in the government may have been the primary factor that contributed to the flawed reasoning and weak justification of the court. The court’s main argument was that constitutional assembly did not intend disqualification of MPs for holding an office in violation of the constitution, and that the Institute of Chartered Accountants of Maldives was different to other regulatory bodies formed under the laws. Additionally, the court argued that section 73(d) did not mention the penalty for violating the section and therefore would not disqualify an MP. This case has great implications for the Maldivian constitutional sphere because if violation of section 73(d) did not warrant disqualification of MPs they can become ministers, serve in the police or the military, and join the civil service while still holding tenure in parliament.  

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Published on December 8, 2020
Author:          Filed under: Developments
 
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What’s New in Public Law

—Vini Singh, Assistant Professor & Doctoral Research Scholar, National Law University Jodhpur, India.

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of South Africa directed the parliament to amend the Correctional Services Act to ensure the independence of prison oversight body.
  2. The Constitutional Court of South Africa declared the law on incitement as violative of freedom of expression and unconstitutional.
  3. The ECtHR ruled that Iceland violated Article 6 of the ECHR in appointment to the judges of the Court of Appeal.
  4. The Supreme Court of India stayed the Gujarat High Court order directing persons not wearing masks to do community service at COVID 19 centres.
  5. The Constitutional Court of Thailand rejected the petition to disqualify Prime Minister Prayuth Chan – Ocha.
  6. The US Supreme Court restrained the authorities from enforcing severe restrictions on religious services during the pandemic.

In the News

  1. Egypt releases three members of Egyptian Initiative for personal rights amidst international criticism.
  2. The Supreme Court of Pakistan seeks records of “10 Billion Tree Tsunami” initiative of the incumbent government.
  3. UK Prime Minister is set to declare one of the most ambitious targets in the world to tackle climate change.
  4. The Parliament of Ukraine restores accountability for false asset declaration.
  5. Ethiopian immigrants receive a warm welcome in Israel.

New Scholarship

  1. Mark D. Walters, A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (re-examines Dicey’s Law of the Constitution)
  2. Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary (discusses the relationship between politics and judicial appointment)
  3. Ian Loveland, British and Canadian Public Law in Comparative Perspective (analyses the current human rights controversies in UK law in the light of the way they have been dealt with in Canada)
  4. Joshua C. Gellers, Earth System Law and the Legal Status of Non-humans in the Anthropocene (2020) Earth System Governance (using case law on the rights of nature to argue that both natural and artefactual entities are eligible for legal rights, a move integral to obtaining socio-ecological justice)
  5. Robert C. Post & Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, Yale Law Journal, Vol. 130 (Suggests a framework for harmonizing the right of publicity with First Amendment)
  6. Adam Ploszka, A Homeless Bill of Rights as a New Instrument to Protect the Rights of Homeless Persons, 2020 European Constitutional Law Review 1 (analyses the measures adopted by FEANTSA as a model for a European Homeless Bill of Rights)

Calls for papers and announcements

  1. Contributions for the Baxter Family Competition on Federalism organized by the McGill University Faculty of Law can be submitted by February 1, 2021. The theme of the competition is Federalism, Identity and Public Policy in Challenging Times. 
  2. The University of Birmingham is organizing a workshop on Constituent Power in the Commonwealth Constitutional Legal Systems in April 2021. The deadline for abstracts is January 22, 2021.
  3. The South African Society for Critical Theory invites contributions to Acta Academia for its special issue on Pandemic Politics. The papers can be submitted by February 28, 2021.
  4. The Centre for Law and Policy Research is organizing the 4th International Conference on Transgender Rights and the Law on December 5-6, 2020. The event will be live-streamed.
  5. The Indian Journal of Constitutional Law invites submissions for its Volume X. Submissions may be submitted by January 17, 2021.
  6. The Bocconi University is organizing a webinar featuring Rosalind Dixon on Democracy and Constitutional Courts: Toward a Responsive Theory of Judicial Review on December 15, 2020.
  7. The book launch for Icelandic Constitutional Reform: People, Processes, Politics will be held on December 10, 2020. The Prime Minister will start the event, and the President of the Republic will open the panel in remembrance of Agust Thor.

Elsewhere Online

  1. Hans Petter Graver, A New Nail in the Coffin for the 2017 Polish Judicial Reform, Verfassungsblog
  2. John Morjin, A Momentous Day for the Rule of Law, Verfassungsblog
  3. Simon Drugda, On Collision Course with the Material Core of the Slovak Constitution: Disabling Judicial Review of Constitutional Amendment, Verfassungsblog
  4. Gautam Bhatia, Notes from a Foreign Field – The South African Constitutional Court on the Rights of Domestic Workers, Indconlawphil
  5. Gauri Pillai, Notes from a Foreign Field – Developing Indirect Discrimination: Bringing Fraser to India, Indconlawphil
  6. Elliot Bulmer, A Scottish Constitution: Should it be devised before or after Independence? The Constitution Unit
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Published on December 7, 2020
Author:          Filed under: Developments
 

What’s New in Public Law

–Maja Sahadžić, Research Fellow, University of Antwerp

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of South Africa ruled that sections of the Compensation for Occupational Injuries and Diseases Act are unconstitutional in that they exclude domestic workers employed in private households from the definition of ’employee’.
  2. The Supreme Court of the United Kingdom will rule whether the IS bride Shamima Begum can return to challenge her loss of British citizenship.
  3. The Supreme Court of Papua New Guinea dismissed a legal challenge over the election of Prime Minister last year.
  4. The Supreme Court of India refused to quash the criminal cases against the German car producer Škoda Auto Volkswagen over the alleged use of “cheat devices” in its cars to camouflage the emission of pollution beyond the permissible limits.
  5. The Constitutional Court of Hungary will review a law disallowing transgender individuals from changing their names and genders in official documents.
  6. The Constitutional Court of Romania deferred for a critical ruling on the 40% pension hike.

In the News

  1. The Scottish parliament passed legislation that will make period products freely available to anyone who needs them.
  2. The President of Chile will appeal to the Constitutional Court to halt an opposition measure aimed at allowing citizens to draw down a second installment from their privately held pensions.
  3. The European Union Court of Justice ruled that foreign military draft evaders could be entitled to asylum in the EU.
  4. The Thai parliament voted on constitutional reforms amid protests.
  5. The Swiss federal government asked the Swiss parliament to review a draft of the reform of the occupational pensions law.
  6. The European Parliament condemned Turkey’s actions in Cyprus.
  7. The European Parliament voted to ban the use of lead ammunition in wetlands.
  8. The Japanese Parliament adopted a revision to Japan’s postal law allowing to scrap Saturday and next-day deliveries of ordinary mail.

New Scholarship

  1. Richard Albert, David Landau, Pietro Faraguna, and Šimon Drugda (eds.), I·CONnect-Clough Center 2019 Global Review of Constitutional Law (2020) (offering readers systemic knowledge about jurisdiction-specific constitutional law).
  2. Joseph Marko, What is Wrong with the Concept of Multinational Federalism? Some Thoughts about the Interrelationship between the Concepts of (Multi-)Nationalism, Federalism, Power Sharing and Conflict Resolution 19(4) Ethnopolitics (offering the de-construction of the concept of multinational federalism and the re-conceptualization of a model of multicultural federalism that allows overcoming the theoretical battles in power-sharing literature between so-called accommodationists and integrationists).
  3. Francesco Palermo, The Elephant in the Room: Ukraine between Decentralization and Conflict 19(4) Ethnopolitics (discussing whether the lack of autonomy in Ukraine and not its supposed presence could be one of the reasons for the present difficult situation).
  4. Patricia Popelier, The Constitutional Court’s Impact on Federalism in Belgium: a Weakening of the Centralization, Jahrbuch des Föderalismus 2020 (discussing the influence of the Belgian Constitutional Court on federalism in Belgium).
  5. Giacomo Delledonne, Giuseppe Martinico, Matteo Monti, and Fabio Pacini (eds.), Italian Populism and Constitutional Law, Strategies, Conflicts and Dilemmas (2020) (exploring the relationship between constitutionalism and populism in the Italian context and providing a comprehensive analysis of constitutional issues related to the rise of Italian populism).
  6. Yonatan T. Fessha and Karl Kössler (eds.), Federalism and the Courts in Africa, Design and Impact in Comparative Perspective (2020) (examining the design and impact of courts in African federal systems from a comparative perspective focusing, in particular, on the organization of the judiciary and the appointment of judges in African federal systems and on whether courts have had a centralizing or decentralizing impact on the operation of African federal systems).
  7. Charles M. Fombad and Nico Steytler (eds.), Corruption and Constitutionalism in Africa (2020) (focusing on the critical issue of corruption that lies at the heart of the crisis of constitutionalism in Africa, drawing attention to the problem of corruption, the complexity of the situation, its multi-faceted social, political, economic and legal dimensions, and the need for remedial action).
  8. Andrea Pin, Islam in Italy (2020) (reflecting on the current treatment of Islam and on discriminatory practices that target Muslims in Italy).
  9. Ronan Cormacain and Ittai Bar-Siman-Tov (eds.), Legislatures in the time of Covid-19 8(3) The Theory and Practice of Legislation (2020) (examining how best to regulate the emergency and the medical response and ensure that emergency legislative responses to the Covid-19 crisis do not permanently undermine the democratic constitutional order).

Calls for Papers and Announcements

  1. The University of Milan organizes the webinar „Democracy and rule of law in crisis: National and EU context compared“ to be held online on 4 December 2020 from 14:30 to 17:00 (CET).
  2. The CCTL Transnational Legal History Group of the CUHK LAW and the University of Law – Hue University organize the conference „Asian Legal History“ to be held in Hue on 24-25 July 2021. The deadline for submissions is 15 December 2020.
  3. The Faculty of Law, Canon Law and Administration of the Catholic University of Lublin organizes the conference „AI and transformations of the legal sector“ to be held online on 1 December 2020 from 9:00 to 16:20  (CET). To register, send an email to konferencja@konsorcjumbgp.pl.
  4. The European Consortium for Political Research invites nominations for the ECPR Political Theory Prize. The deadline for nominations is 26 February 2021.
  5. The American Constitution Society for Law and Policy invites scholarly proposals on any constitutional law topic for the Sixth Annual Constitutional Law Scholars Forum to be held in Orlando on 26 March 2021. The deadline for submissions is 1 December 2020.
  6. The University of Catania Law Department hosts the European Society of International Law’s annual Research Forum on 15-16 April 2021. The deadline for registrations is 15 March 2021.

Elsewhere Online

  1. Peter Whoriskey, U.S. report: Much of the world’s chocolate supply relies on more than 1 million child workers, The Washington Post
  2. Michael Rhimes, Intersectionality and equality: a view from the Constitutional Court of South Africa, UK Human Rights Blog
  3. Miriam Kosmehl, Ukraine arrives at a new anti-corruption crossroads, Atlantic Council
  4. Joseph Jaconelli, Constitutional Disqualification, UK Constitutional Law Association Blog
  5. Ulla Liukkunen, Collective bargaining in transition – A renewed role for legal comparison, BACL
  6. Maria Cahill, Does Popular Sovereignty Create Immunity to Populism?, IACL-AIDC Blog
  7. Janet McLean, Referendums on Public Policy Questions: The Case of New Zealand, IACL-AIDC Blog
  8. Nicolò Alessi, Lesbo Island: the EU’s and western legal tradition’s failure, Eureka!
  9. Renáta Uitz, Unbounding the Hungarian Executive and Cementing Illiberal Christian Identity Politics, ConstitutionNet
  10. Nathan de Arriba-Sellier, Another Urgenda in the making, Verfassungsblog
  11. Peter Čuroš and Hans Petter Graver, Dissimilar Similarities, Verfassungsblog
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Published on November 30, 2020
Author:          Filed under: Developments
 

Does Popular Participation in Constitution-Making Matter?

—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

I·CONnect has recently published a series of excellent essays on the constitution-making process that will soon begin in Chile. One element of the process that was mentioned by several of the authors was public participation. Indeed, public participation was a central element of the ultimately unsuccessful constitution-making process in Chile in 2015-2017. The fact that the current process of constitutional reform responds so directly to pressure from protest movements also suggests that participation outside the halls of the Constitutional Convention will be an important part of the 2021 constitution-drafting process. As anyone who has paid attention to constitution-making processes in the last several decades knows, Chile is far from an exception in this regard. Countries that vary on every political and social measure have incorporated participatory elements in processes of constitutional reform and replacement. Reflecting on these trends, Kirkby and Murray wrote that: “Today it is inconceivable that a government would attempt to draft a new constitution without at least a nominal commitment to a process in which the public is consulted.”[1]

One of the most interesting questions that all of this participatory activity raises is: to what extent does input from the public really influence the content of the constitution? To return to the Chilean example again, it is very likely that the drafters in the new Constitutional Convention will receive tens or even hundreds of thousands of submissions from the public in one form or another. What will they do with this material? How will they weigh it against other sources of information, or other avenues through which political demands are communicated? Beyond simple curiosity about what will transpire, these questions have immense normative importance.

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Published on November 25, 2020
Author:          Filed under: Analysis
 
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