Blog of the International Journal of Constitutional Law and

Book Review: Francisca Pou Giménez on Rebecca J. Cook, Joanna Erdman and Bernard M. Dickens’s “Abortion Law in Transnational Perspective: Cases and Controversies”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Francisca Pou Giménez reviews Rebecca J. Cook, Joanna Erdman and Bernard M. Dickens’s Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press, 2014).]

Francisca Pou Giménez, Instituto Tecnológico Autónomo de México (ITAM)

This is an edited book, and an especially mature species of the genre, providing an encompassing analysis of abortion developments in the combination of spaces and jurisdictions we associate to the idea of the “transnational sphere.” The editors’ long experience in the field and their pluralistic sensitivities are everywhere detectable: in the choice of contributors and the countries they cover, in the range of understandings of law they engage–which prompt a serious focus on symbolic effects or on implementation matters–or in the way the collection succeeds at illustrating the wealth of interactions among rules, ideas, values, power and social action that scholarship as a distinctive endeavor is set to reveal. But in my view, as I will emphasize below, this is as much a book on abortion as it is a privileged balcony from where to watch contemporary constitutional engagement at work, and can be read with equal profit under any of those two interpretive keys.

The book has four parts, preceded by an introduction.

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Published on May 17, 2017
Author:          Filed under: Reviews

What’s New in Public Law

Maja Sahadžić, Ph.D. Researcher (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

Developments in Constitutional Courts

  1. The Court of Appeal of Sri Lanka upheld a judgment that disqualifies an MP due to dual citizenship.  
  2. The Spanish Constitutional Court partially suspended the Catalan law on non-binding referenda, approved in 2010.
  3. The South African Constitutional Court hears Gijima and State Information Technology Agency (Sita) case to set aside a multimillion rand deal awarded to the private company.  
  4. The Supreme Court of India reviews whether instant Islamic divorce is constitutional.
  5. The Constitutional Court of Egypt ruled that women who take extended unpaid maternity leave should receive full annual pay increases.
  6. The South African Constitutional Court ruled that a domestic worker can upgrade her quarters at her own expense even against the property owner’s wishes.

In the News

  1. The European Court of Justice upheld a non-binding decision that Uber is a transportation company and not an information service.
  2. The Connecticut governor signed into a law a measure to ban gay conversion therapy.
  3. The Health Minister of Ireland called for a repeal of the country’s blasphemy laws.
  4. The High Court of India upheld a sentence to a high court judge for contempt.
  5. Bangladesh starts discussions on amending Constitution.
  6. The US House of Representatives passed legislation to replace the Affordable Care Act.
  7. Wikipedia appealed to the Turkish Constitutional Court to have a government decision to block access to its website lifted.
  8. Jakarta’s Christian governor was sentenced to two years in prison for blasphemy.
  9. The Chamber of Deputies of the Romanian Parliament changed the constitutional definition of family.
  10. Samoa proposed a constitutional amendment to declare itself a Christian state.
  11. The US District Court of Northern California approved the Volkswagen emission settlement.

New Scholarship

  1. Xenophon Contiades and Alkmene Fotiadou (eds.), Participatory constitutional change, The people as amenders of the constitution (2017) (exploring the recent trend of enhancing the role of the people in constitutional change)
  2. Liav Orgad, The cultural defense of nations, A liberal theory of majority rights (2017) (exploring the cultural rights of the majority and the policies that claim to protect them)
  3. Nicholas Aroney and John Kincaid, Courts in federal countries: federalists or unitarists? (2017) (examining centralizing and decentralizing trends in the case law of high courts in 13 federal or quasi-federal jurisdictions)
  4. Mark Elliot, The Supreme Court’s judgment in Miller: In search of constitutional principle (2017 forthcoming) Cambridge Law Journal (examining the majority’s judgement restrictive approach in Miller vs. Secretary of State for exiting the European Union)
  5. Paolo Passaglia (ed.), The 2016 Italian Constitutional Referendum: Origins, Stakes, Outcome (2017) The Italian Journal Special Issue (analyzing the 2016 Italian constitutional referendum)
  6. Se-shauna Wheatle, Principled Reasoning in Human Rights Adjudication (2017) (offering a thematic analysis of the use of the implied constitutional principles of the rule of law and separation of powers in human rights cases in Australia, Canada, the Commonwealth Caribbean, and the United Kingdom)
  7. Donald C. Brockett, The Tyrannical Rule of the U.S. Supreme Court (2017) (analyzing dissenting opinions of the Supreme Court justices and their impact on civil liberties)

Call for Papers and Announcements

  1. The Porto Faculty of Law, Universidade Católica Portuguesa invites applications for the conference “Constitutionalism in a Plural World” to be held on 22-23 November 2017. The submission deadline is July 15 2017.
  2. The Government and Law Research Group of the University of Antwerp organizes 7th annual doctoral conference on “Hybrid Forms of Governance: Moving Beyond Traditional Public Law” in Antwerp, on 17 May 2017.
  3. Melbourne Law School invites submissions for the “Third Biennial Public Law Conference” on 11-13 July 2018 in Melbourne. The deadline for a submission of abstracts is 25 August 2017.
  4. IACFS invites submissions for the Ronald L. Watts Young Scholar Award for the best unpublished article or paper on an aspect of federalism. The submission deadline is 30 June 2017.
  5. The Institute for Comparative Federalism welcomes applications from scholars and practitioners who study and work in the fields of federalism, regionalism and intergovernmental relations for the yearly Federal Scholar in Residence Program. The submission deadline is 1 July 2017.
  6. Eötvös Loránd University Faculty of Law organizes the conference “Reloading the Tale of Emperor’s New Clothes – Statehood and Sovereignty in the 21st Century” in Budapest, on 31 May 2017.
  7. Loyola University Chicago School of Law invites abstracts for its annual Constitutional Law Colloquium on 3-4 November 2017 in Chicago. The submission deadline is 20 June 2017.

Elsewhere Online

  1. Brian Christopher Jones, Should Hong Kong’s Basic Law be scrapped and a new constitution negotiated?, South China Morning Post
  2. Michael Keating, Multidimensional competition: the new game in British politics, The UK in a Changing Europe
  3. Andrew Knapp, How would Emmanuel Macron govern without a parliamentary majority?, The Constitution Unit
  4. Carlos Arturo Villagrán Sandoval, Does Latin America need a ‘Supra-Constitutional’ court? Lessons from the Central American experience, Constitution Making & Constitutional Change
  5. Greg Barns, Australia’s Forcible Deportations of Unwell Asylum Seekers: Legal Obligations, Jurist
  6. Mark Elliot, The “bedroom tax”, Convention rights and secondary legislation, Public Law for Everyone
  7. Conor Crummey, The Duty to Protect the Irish Language and the Use of Declaratory Relief in Northern Ireland, UK Constitutional Law Association
  8. Marcin Matczak, Why the Announced Constitutional Referendum in Poland is not a Constitutional Referendum after all, Verfassungsblog 
  9. Tunku Zain Al-Abidin, Hooray for the judiciary, Borneo Post Online
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Published on May 15, 2017
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Constitutional Amendments in Georgia: Towards Parliamentarism

Malkhaz Nakashidze, Fulbright Visiting Scholar, Boston College Law School; Assocoate Professor, Batumi Shota Rustaveli State University School of Law

On December 15, 2016, the Parliament of Georgia created the State Constitutional Commission.[1] The aim of the Commission was to elaborate the Draft law on revision of the Constitution of Georgia in the interest of the long-term democratic development of the country.[2] On April 22, 2017, the Commission adopted the Draft of Revision of the Constitution.[3] In this post, I review some of the main features of the Draft, both its content and the process that led to its writing.

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Published on May 12, 2017
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Democratic Decay in ‘Keystone’ Democracies: The Real Threat to Global Constitutionalism? (I-CONnect Column)

Tom Gerald Daly, Fellow, Melbourne Law School; Associate Director, Edinburgh Centre for Constitutional Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

In their latest Global Constitutionalism editorial Mattias Kumm, Jonathan Havercroft, Jeffrey Dunoff and Antje Wiener consider the decay, even the end, of ‘the West’–“a relatively cohesive geopolitical configuration anchoring a normative model of global order in which commitments to human rights, democracy and the rule of law are central.”[1] However, they argue that this would not necessarily mean the end of global constitutionalism, pointing to the fuzzy identity of ‘the West’ itself, the ambivalent and non-linear relationship between the West and constitutionalism, the potential for non-Western states (including undemocratic states such as China) to step into the vacuum left by Western powers retreating from the international order, the deeply embedded principles of constitutionalism in structures and practices globally, and the lack of a coherent single alternative ideology to supplant it.

In terms of this column’s preoccupation with democratic decay–defined as the incremental degradation of the structures and substance of liberal constitutional democracy–we could, then, bemoan democratic decay in the West but console ourselves that the spirit of liberal constitutional democracy will live on, and evolve, outside of its traditional Western redoubts, providing sustenance for the endurance of global constitutionalism more broadly as a dominant register for articulating and organising a variety of multi-lateral and multi-level political relationships. The sticking point is that we are not seeing democratic decay solely in the West: it is a global phenomenon.

Which brings us to a pressing question: does decay in some democracies matter more than others, and would significant decay in a small number of key democracies worldwide spell the end of global constitutionalism? Conservation biologists speak of ‘keystone species’: a species so disproportionately important to its ecosystem that its disappearance can remodel the entire system, set in train a negative ‘domino effect’ for the other species in the system (leading to widespread extinction at its extreme), or open a space for new invasive species.[2] In the context of the global democratic ecosystem, which has supported (and been supported by) the emergence of global constitutionalism, do some states count as ‘keystone democracies’ whose removal could profoundly undermine the system as a whole? This is not mere conjecture: recent research, for instance, has shown that a regional political context supportive of democracy, reflected in the presence of other democracies in the region, is a strong factor in the sustainability of each individual domestic democratic system in the region. The converse is also true: authoritarian regimes perceived as successful breed imitators.[3]

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Published on May 10, 2017
Author:          Filed under: Analysis

Symposium on “The Constitution of Canada: History, Evolution, Influence and Reform” in Pisa, Italy

Richard Albert, Boston College Law School

Giuseppe Martinico (Sant’Anna), Antonia Baraggia (Milan), Cristina Fasone (LUISS) and I are convening a symposium on “The Constitution of Canada: History, Evolution, Influence and Reform” at the Scuola Superiore Sant’Anna in Pisa, Italy on Wednesday, May 24, 2017.

The symposium, held in memory of Alessandro Pizzorusso, will gather scholars to mark the Sesquicentennial of Confederation.

The program is copied below. All are invited to attend.

Questions may be directed to Giuseppe Martinico by email at

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Published on May 9, 2017
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What’s New in Public Law

Vicente F. Benítez R., Constitutional Law Professor, Universidad de La Sabana (Colombia) and LL.M. student at NYU

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

Developments in Constitutional Courts

  1. The Colombian Constitutional Court held that the Atrato River possesses rights, and ordered the Government to take measures to avoid its destruction by illegal mining.
  2. The Romanian Constitutional Court upheld a statute that prohibits people with criminal records to be Government members.
  3. The Constitutional Court of Kuwait rejected a claim that challenged the validity of the November 2016 parliamentary elections. The Court accepted only one petition out of 52, replacing one MP.
  4. The Indian Supreme Court hears a challenge to biometric authentication system.
  5. The Indian Supreme Court upheld death sentences for four men who fatally raped a woman in 2012.  
  6. The South African Constitutional Court holds a hearing on the conditions for a vote of no confidence against the President, concerning to the use of a secret ballot.
  7. The Constitutional Court of Moldova partially struck down a provision that allowed the Government and Parliament to annually adjust the judiciary’s salaries on a discretionary basis.
  8. The Constitutional Court of Moldova ruled unconstitutional the Russian military occupation of its territory, in the interpretation of Article 11 of the Constitution (Application 37b/2014) on permanent neutrality of Moldova.
  9. The Supreme Court of Nepal reinstated Chief Justice Sushila Karki.
  10. The U.S. Supreme Court ruled that Miami can sue to banks over predatory loans.

In the News

  1. The President of Venezuela Nicolás Maduro issued a decree calling for a constituent assembly to enact a new constitution, in the wake of the daily demonstrations against his regime.
  2. The National Assembly of Zimbabwe is to discuss an amendment proposal that would establish a presidential power to appoint the Supreme Court’s Chief Justice without the intervention of the Judicial Service Commission.
  3. The President of Poland Andrzej Duda called for a referendum, arguing that the people have the right to update and decide their constitutional arrangements.
  4. A prominent Thai human rights lawyer was criminally charged for allegedly insulting members of the royal family.
  5. The U.S. President Donald Trump signed an executive order to allow churches more opportunity to engage in politics.
  6. The Network of the Presidents of the Supreme Judicial Courts of the European Union issued a statement on Polish authorities’ interferences with the judiciary.
  7. Puerto Rico filed for bankruptcy protection under Article 3 of PROMESA, a special law passed to handle its significant debt.
  8. Georgian Parliament passed draft amendments to the Constitution.

New Scholarship

  1. Larry Catá Backer, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States, Cornell International Law Journal (2015) (discussing the “return” of religion to the public sphere in a comparative perspective)
  2. Rosalind Dixon & David Landau, Tiered Constitutional Design, George Washington Law Review (forthcoming); FSU College of Law, Public Law Research Paper No. 839 (2017) (exploring a “tiered constitutional design” model, and the ways in which it could help combat anti-democratic tendencies in contemporary constitutionalism)
  3. Oran Doyle & David Kenny, Constitutional Change and Interest Group Politics: Ireland’s Children’s Rights Referendum, in Richard Albert, Xenophon Contiades and Alkmene Fotiadou (eds.), The Foundations and Traditions of Constitutional Amendment (2017) (scrutinizing a case of formal constitutional change to judicial doctrine, and the problems of public understanding involved)
  4. Julio Ríos-Figueroa & Paloma Aguilar, Justice Institutions in Autocracies, Democratization (2017) (discussing the role of justice institutions in autocracies, and offering a theoretical framework to analyse their function)
  5. Tracy Robinson & Arif Bulkan, Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights, The Modern Law Review (2017) (examining how the Judicial Committee of the Privy Council makes comparisons to solve idiosyncratic questions that arise across multiple constitutions within its jurisdiction, and particularly the opening section of the Caribbean constitutional bills of rights)
  6. Joshua Segev, The (unified?) Fiduciary Theory of Judging: Hedgehogs, Foxes and Chameleons, Faulkner Law Review (2017) (offering an account of the judge-as-fiduciary model in Anglo-American constitutional tradition)
  7. Silvia Suteu, Eternity clauses in post-conflict and post-authoritarian constitution-making: Promise and limits, Global Constitutionalism (2017) (reflecting on the challenges and opportunities for eternity clauses in transitional regime constitution-making)

Calls for Papers and Announcements

  1. The Institute for Comparative Federalism of Eurac Research in Bolzano-Bozen (South Tyrol, Italy) invites interested scholars to apply for the Federal Scholar in Residence Program that aims to enhance the comparative study of federalism and regionalism. The deadline for applications is July 1, 2017.
  2. The INTRAlaw (INternational and TRAnsnational tendencies in LAW) Research Centre invites submissions for its forthcoming conference on “Law in transition – Interacting legal orders and changing actors,” to be held on September 28-29, 2017, in Aarhus, Denmark. The deadline for proposals is June 1, 2017.
  3. The University of Milan, in association with the Associazione Italiana di Diritto Comparato (AIDC), the Diritto Pubblico Comparato ed Europeo Association, and the Younger Comparativists Committee (YCC) convenes a conference on “The Separation of Powers: A Global Constitutional Dialogue,” which will take place on May 22, 2017.  
  4. The University of Melbourne and the University of Cambridge organizes a conference on “The frontiers of Public Law” that will take place from 11-13 July, 2018. The deadline for submissions is August 25, 2017.   
  5. The Younger Comparativists Committee of the American Society of Comparative Law (YCC) welcomes submissions to fill a panel on “New Perspectives in Comparative Law” to be held at the Society’s 2017 Annual Meeting in Washington D.C., on October 26-28, 2017. The deadline for submissions is June 26, 2017.
  6. Cornell Law School accepts papers for its “Annual Conference on Empirical Legal Studies” to be held on October 13-14, 2017. The submission deadline is June 23, 2017.

Elsewhere Online

  1. Richard Albert, Haiti should relinquish its sovereignty, The Boston Globe
  2. David Cameron, Beneath the Macron landslide, a disenchanted and divided France, Yale MacMillan Center
  3. Sanford Levinson, The further decay of our constitutional order: Reflections on the passage of Trumpcare, Balkinization
  4. Tomasz Tadeusz Koncewicz, Living at Times of Politics of Resentment: Of Unconstitutional Capture, Hope for Constitutional Fidelity and Challenge of “Doing Europe”, Hungarian Europe Society Blog
  5. Gábor Halmai, Much Ado About Nothing? Legal and Political Schooling for the Hungarian Government, Verfassungsblog
  6. Bal Kama, Christianising Samoa’s constitution and religious freedom in the Pacific, Devpolicy Blog
  7. Marina Aksenova, Achieving Justice Through Restorative Means in Colombia: New Developments in Implementing the Peace Deal, EJIL: Talk!
  8. Dan Westbury, Clive Palmer and the bankruptcy ‘Star Chamber’? The granting of powers of inquiry to courts under Ch III of the Constitution, AUSPUBLAW
  9. Ito Peng, Two East Asian Approaches to Care, OxHR
  10. Pierre de Vos, Why it is unlikely the court will review and set aside the cabinet reshuffle, Constitutionally Speaking
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Published on May 8, 2017
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“Constitutional Dismemberment” and Political Crisis in Brazil: Populism in Sight?

Juliano Zaiden Benvindo, University of Brasília

Jon Elster once wrote that “… the task of constitution-making generally emerges in conditions that are likely to work against good constitution-making.”[1] Passion – as he puts it – prevails over reason in such turbulent circumstances. When it comes to other forms of substantial constitutional change, such as what Richard Albert has recently called “constitutional dismemberment,” whose purpose is “to unmake the constitution” by passing a change that “is incompatible with [its] existing framework,”[2] do Elster’s words also apply? Brazil, which passed through a traumatizing impeachment process of President Dilma Rousseff in August 2016, is still facing a major political crisis. At this very moment, over one hundred political figures are under investigation for corruption at the Supreme Court, a situation Foreign Affairs perfectly described as “Brazil’s Never-Ending Corruption Crisis.”  As dramatic as this political crisis is, constitutional change is gathering pace as rarely since democratization in 1985, affecting areas that have been historically deemed to constitute the social core of the 1988 Constitution. An extensive overhaul of the national pension system, as set out in the constitutional text, is about to be voted on in Congress. Labor legislation is also being attacked. All this follows an already passed constitutional amendment which freezes federal spending for two decades, only allowing increases according to the previous year’s rate of inflation. Elster’s words thus seem to be a good match for Brazilian reality, but isn’t it paradoxical that a sort of “constitutional dismemberment” takes place exactly when the political system is sinking fast?

It is true that “constitutional dismemberment,” according to some of Richard Albert’s examples,[3] can take place in seemingly stable contexts and be the outcome of calculated steps that, through distinct means, radically modify the constitutional text. The cases of the Japanese Constitution’s Peace Clause,[4] and Canada’s Constitution Act of 1982, for instance, would possibly qualify as such. But, like typical processes of constitution-making, sweeping and structural modifications to the constitutional framework seem to be more easily introduced in such circumstances of crisis, when passion and reason – to use Elster’s terminology – are clashing with each other. The case in Brazil is of particular interest, because such changes are taking place amid a soaring antipolitical sentiment and through technocratic means. While there is a deepening distrust of politics in society, the political sphere is passing legislation without any serious democratic debate and through a typical top-down process of decision-making. Using a discourse of economic rationality sold by some pundits and members of an extremely unpopular government, these changes are sold as a necessary safeguard for the Brazilian future and which must be passed urgently. There is no discussion of whether these changes would disrupt some of the commitments of the Brazilian Constitution aimed at improving and guaranteeing social rights to its most vulnerable populations. Perhaps one could argue that the constitution must be modified to face some real fiscal challenges in realizing those social rights, especially in a context of economic downturn. However, these changes – as Marcelo Medeiros, one of the greatest researchers on inequality in Brazil, argues – “impose undue constraints on the poorest, create an unfair pressure on women, and grant privileges to influential groups.”

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Published on May 6, 2017
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Conference on “The Separation of Powers: A Global Constitutional Dialogue” at the University of Milan, May 22, 2017

Richard Albert, Boston College Law School

Antonia Baraggia (Milan), Luca Vanoni (Milan), Cristina Fasone (LUISS) and I are convening a conference on “The Separation of Powers: A Global Constitutional Dialogue.” We will gather at the University of Milan on Monday, May 22, 2017, at Sala Napoleonica, via Sant’Antonio 12.

The conference is inspired by the late Giovanni Bognetti’s important book on “La Divisione dei Poteri” (Giuffré, 2001). The English edition of the book will be launched at the conference under the title “Dividing Powers: A Theory of the Separation of Powers” (Wolters Kluwer, 2017).

The program is copied below. All are invited to attend. To register for free, please click here.

Questions may be directed to Antonia Baraggia by email at

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Published on May 5, 2017
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Populist Constitutionalism

Paul Blokker, Charles University in Prague

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

Populist engagement with constitution-making and constitutional reform forms a distinctive, and in significant ways worrying, tendency. Populism is explicitly present in the constitutional politics of the East-Central European countries of Hungary and Poland (but not reducible to East-Central Europe), and is causing important tensions in the European Union, which proclaims to be grounded in the values of democracy, the rule of law, and fundamental rights. Concern about the populist-constitutional phenomenon has stimulated lively debates on democratic backsliding and illiberal democracy in Europe as well as on the supranational monitoring of democracy.[1]

Populism is generally seen as in great tension with constitutionalism, that is, populism rejects the modern constitutional order tout court or, at best, relates to constitutionalism in an opportunistic way. In my view, however, concurring here with Jan-Werner Müller, a distinctive populist approach to constitutionalism warrants further investigation.[2] There at least three different reasons for this. First of all, the idea of popular sovereignty is central to populism, but the people’s will is equally the ultimate legitimation of modern constitutionalism. Indeed, the modern constitutional tradition is grounded in both order and self-limitation, and popular self-government.[3] What is specific is that populists claim that the principle of popular sovereignty is insufficiently guaranteed in liberal-constitutional regimes. Secondly, populism engages in legal skepticism, or what I have elsewhere called legal resentment,[4] that is, populists are both highly critical of liberal or legal constitutionalism and they endorse alternative constitutional projects. Populist constitutionalism can thus be understood as a critical countercurrent.  Following from this, thirdly, populism frequently engages in projects of constitution-making and constitutional reform. Populists in power engage in intense reform (and abuse) of the existing constitutional arrangements, in contrast to the idea that populism consists of a merely oppositional, anti-political phenomenon.

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Published on May 4, 2017
Author:          Filed under: Analysis

Judges Speaking for the People: Judicial Populism Beyond Judicial Decisions

Diego Werneck Arguelhes, Getulio Vargas Foundation Law School (FGV Direito Rio — Brazil); Information Society Project, Yale Law School (Spring 2017)

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

We typically think of courts as victims or targets of populist politics, however we define the latter. Staffed by elites appointed by previous governments, high courts are indeed obvious targets for populist leaders on the rise. To preserve their authority against such threats, courts might adjust their decisions to trends in public opinion, or perhaps “go public” and speak out to the people, adopting public relations strategies to make it harder for politicians to ignore or retaliate against their decisions.[1] In this post, however, I want to sketch an alternative scenario. As general dissatisfaction with representative institutions increases, instead of simply reacting, courts might actively pursue a populist path themselves and claim to speak for the people.

General disillusionment with the political establishment is a key ingredient fueling populist leaders and movements. To some extent, going against the establishment and making claims to (better) represent the people is part of electoral politics.[2] Amidst general disillusionment, however, courts can take the lead, beyond publicly defending judicial authority against political attacks. Adopting the populist vocabulary, they can claim to represent and vindicate current majority sentiment against corrupt establishment politicians.

Consider the case of Brazil. Since the mass protests of 2013, the country has been in a deep political crisis, and support for representative institutions has reached abysmally low levels.[3] From 2014 on, more and more political leaders from different parties, including all living former presidents since democratization and eight members of President Temer’s cabinet, have been investigated or prosecuted within the Operação Lava Jato (“Operation Car Wash”); the Speaker of the House of Representatives, Eduardo Cunha, was even removed from office by the Supreme Court.[4] To this mix, we add an economic crisis (from 2015 on), the controversial impeachment of President Rousseff in late 2016, and a pending lawsuit in which the Superior Electoral Court is being asked to void the 2014 presidential election due to bribes and illegal campaign funds. This political climate, beyond whatever effects it might have had on the substance of judicial decisions, seems to have influenced judicial self-presentation before the public.

Sérgio Moro, a federal trial judge in charge of criminal lawsuits within the Lava Jato framework, has been the only public figure with a consistently high (above 50%) approval rate amidst the crisis.[5] After mass street protests in March 2016 in which his name and face were visible on the shirts of many protesters, Moro issued a public statement thanking people for their support and explaining that Lava Jato was the work of many different authorities. But he also added: “It is important that elected authorities and political parties listen to the voice of the streets and also commit themselves to fighting corruption.”[6] One year later, Moro would release a short video, posted on a Facebook page maintained by his wife, thanking people once again for supporting Lava Jato. Moro has been an early supporter of judges and prosecutors adopting strategies to enlist public opinion to support judicial decisions against white-collar organized crime.[7] However, these recent manifestations – their symbolism, their vocabulary, the focus on the judge as a person and her direct connection to public demands – would seem to go beyond an institutional strategy to buttress judicial authority.

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Published on May 4, 2017
Author:          Filed under: Analysis