Blog of the International Journal of Constitutional Law and

I-CONnect Symposium: The Independence Vote in Catalonia–Sovereignty Referendums: Constitutionalism in Crisis?

[Editor’s Note: This is the fourth entry in our symposium on Sunday’s independence vote in Catalonia. We are grateful to our convener, Professor Zoran Oklopcic, for assembling an outstanding group of scholars to bring our readers helpful context and analysis during this important moment for the region. The introduction to our symposium is available here.]

Stephen TierneyProfessor of Constitutional Theory, University of Edinburgh; Author of Constitutional Referendums: The Theory and Practice of Republican Deliberation (OUP, 2012)

And so here we are again: a major constitutional issue in Europe reaches its culmination in a dramatic moment of direct democracy which usurps established constitutional understandings with the raw manifestation of what purports to be constituent power. The Crimea status referendum in 2014, the independence referendum in Scotland of the same year, the United Kingdom’s ‘Brexit’ referendum in 2016 and now the Catalan referendum on independence, each in its own way confronting established understandings of where constitutional supremacy rests. And this challenge is present not only in the fundamental nature of the issue at stake but also in the process itself – bringing ‘the people’ to the fore in a way that deeply unsettles the medium through which constitutional practice is typically construed and conducted: institutional representation.

Much has been written about the internal constitutional issues at stake in the Catalan referendum, assessing these from different perspectives (e.g. here, here and here). I do not intend to comment on the constitutionality or legitimacy of the process or to focus upon the Catalan situation specifically. Instead I take the vote on 1 October as simply the latest example of how the referendum continues to proliferate as a constitutional decision-making mechanism and how poorly the referendum, as a now critically important arena of constitutional practice, is both articulated by and accommodated within the established parameters of mainstream constitutional theory. The Catalan referendum as part of the recent tendency towards ad hoc exercises in direct democracy presents constitutional theorists with two significant challenges: one relating to monist certainties about the nature of the demos, the other concerning the conceptualisations of constitutional sovereignty and complacent assumptions about the default and de facto supremacy of constitutional form over popular democracy.

The proliferation of the referendum is now emerging as perhaps the most challenging constitutional development of our time.

Read the rest of this entry…

Print Friendly
Published on October 5, 2017
Author:          Filed under: Analysis

Developments in Israeli Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Israeli constitutional law, which appears in the larger 44-country 2016 Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

Justice Uzi Vogelman*, Nadiv Mordechay**, Yaniv Roznai***, Tehilla Schwartz****

I. Introduction

This review presents key developments in the jurisprudence of the Israeli High Court of Justice (HCJ) in 2016. These developments reflect part of the multifaceted longstanding role of the HCJ in constitutional challenges of the state of Israel which involve complicated dilemmas concerning minorities, emergency laws, prolonged belligerent occupation and recurring armed conflicts, unique rules of citizenship, and complex relation between religion and state.[1]

II. The Constitution and the Court

Israel’s constitutional model is based on an incomplete constitution, due to the original decision in the early years of independence not to complete the constitutional design at the time of the establishment of the state, but rather to leave it as an incremental enterprise.[2] The Israeli constitution includes several Basic Laws that regulate the governmental structure and institutions, and the HCJ also has a respectable tradition of judicial protection over the unwritten common-law rights and freedoms.[3] Basic Laws are enacted by the Knesset (Parliament) which holds both legislative and constituent powers.[4] In 1992, the Knesset enacted two Basic Laws on fundamental rights: Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, that constitute a partially entrenched bill of rights.[5] The HCJ United Mizrahi Bank case asserted the authority of judicial review, comparable to the “Marbury” model.[6] This joint legislative-judicial change, known as the “constitutional revolution”, resulted in the HCJ becoming the central institution in the development of constitutional protection of human rights.

Therefore, the Israeli constitutional law story is rather unique as it applies American-style judicial review to primary legislation, yet its constitutional laws are enacted through ordinary legislation procedures, in the British-style.[7] Israel is also particularly unique due to the inverse ratio between the thin written constitution and the constitutional role of its court. The HCJ hears petitions about Knesset legislation and administrative decisions as the first instance, and its constitutional review model is very close to an “abstract” review. The HCJ is highly accessible to all types of petitions, maintaining broad individual standing in administrative and constitutional petitions (also from protected populations in the Judea and Samarea). For over a decade now, the existence and scope of constitutional judicial review in Israel has been harshly contested.[8]

Read the rest of this entry…

Print Friendly

I-CONnect Symposium: The Independence Vote in Catalonia–The Constitutional Crisis of October 1

[Editor’s Note: This is the third entry in our symposium on Sunday’s independence vote in Catalonia. We are grateful to our convener, Professor Zoran Oklopcic, for assembling an outstanding group of scholars to bring our readers helpful context and analysis during this important moment for the region. The introduction to our symposium is available here.]

Víctor Ferreres Comella, Professor of Constitutional Law, Pompeu Fabra University (Barcelona); Visiting Professor, University of Texas at Austin School of Law; Author of “The Constitution of Spain: A Contextual Analysis” (Hart Publishing, 2013)

In the past few years, a strong social movement has emerged in Catalonia to support a political process that should lead to Catalonia’s independence from Spain. The current majority in the Catalan Parliament is clearly committed to secession. The political parties that obtained a majority of the parliamentary seats in the elections that were held on 27 September 2015 (Junts pel Sí and CUP) were very explicit during the electoral campaign that a vote for them was to be counted as a vote in support of secession. Although the popular vote they gathered was only 47%, they argued that they had a democratic mandate to break Catalonia’s ties with Spain. Thus, in November 2015, they passed a parliamentary resolution that provided that the Catalan government was only to be bound by Catalan laws, and also declared that the Spanish Constitutional Court had lost its legal authority to invalidate any decisions by the Catalan government. (The Constitutional Court, of course, declared such a resolution to be unconstitutional).

A few weeks ago, the Catalan Parliament continued its secessionist strategy and passed two important statutes. It did so through a fast-track procedure that eliminated all the rights of participation that the parties in the opposition are normally awarded. One statute called a referendum on independence, to be held on October 1, 2017. The other stipulated the procedure that needed to be followed to declare Catalonia’s independence and give birth to a new Catalan Republic. According to these laws, if the referendum reveals that there are more votes in favor of independence than against it, the Catalan Parliament must issue a declaration of independence in 48 hours. A provisional set of laws will then apply, until a new Constitution is adopted.

All these political moves obviously amount to a grave attack on the democratic constitutional order of Spain.

Read the rest of this entry…

Print Friendly
Published on October 4, 2017
Author:          Filed under: Analysis

Conference Report–The Limits and Legitimacy of Referenda–University of Toronto Faculty of Law

–Katelin Everson, University of Toronto Faculty of Law

On September 22-23, 2017, the University of Toronto Faculty of Law hosted a symposium on the ‘Limits and Legitimacy of Referenda’. Co-convenors Richard Stacey (University of Toronto Faculty of Law) and Richard Albert (Boston College Law School) brought together scholars from around the world for discussion and exchange on the role and efficacy of referenda in amending and making constitutions, in resolving territorial disputes, and in questions of national identity.

A theme that emerged as central to the conversation was a dilemma revolving around the conflicting ethical implications of referendum. On one hand, the referendum stands as an important tool of democracy, upholding the moral commitment to government according to the will of the people, and recognising the moral autonomy of people to decide how they want to be governed. In this sense a moral commitment to democracy presupposes people’s capacity to form and express opinions, as well as guaranteeing the equal liberty of all to do so. But on the other hand, the referendum may operationalize populist and nationalist rhetoric that emphasises homogeneity and unity, and threatens to undermine a society’s moral commitments to values of liberty, equality, multiculturalism and diversity. The referendum thus emerges not as a way of accommodating or celebrating difference but of eliminating it, squarely juxtaposing the moral reasons to value referendum against the moral reasons to avoid it.

The programme was generously supported by the Faculty of Arts and Sciences, the Faculty of Law, the Centre for Ethics at the University of Toronto, and the Munk School of Global Affairs.

Read the rest of this entry…

Print Friendly
Published on October 3, 2017
Author:          Filed under: Developments

I-CONnect Symposium: The Independence Vote in Catalonia–! Aidez la Catalogne et l’Espagne !

[Editor’s Note: This is the second entry in our symposium on Sunday’s independence vote in Catalonia. We are grateful to our convener, Professor Zoran Oklopcic, for assembling an outstanding group of scholars to bring our readers helpful context and analysis during this important moment for the region. The introduction to our symposium is available here.]

Antoni Abat i Ninet, University of Copenhagen Faculty of Law

As I am sitting now in front my computer writing this entry, I feel I need to begin with a disclaimer: I wonder if I am objective enough to write these lines after experiencing—in the first-person—such brutal, disproportionate, and senseless aggression of the Spanish police wrought against ordinary people—the people who only wanted to exercise their democratic right to vote, be heard, and make their voices count.

Instead, the scene evoked in Joan Miro’s famous painting is sadly relevant once again. The kinds of the abuses that the citizens of Catalonia are experiencing today, are comparable to those of a dark era in the history of Spain—Franco’s fascist regime. Those who have capacity to influence the Spanish government to stop escalating this crisis should keep that in mind. If the European institutions agree to simply observe the violation of the fundamental and core values —enshrined in the article 2 of their own founding act, the Treaty of the European Union—Catalans will need all the support they can get: not only of the entire European public opinion, but also other valid mediators. That help is urgently needed if Catalonia and Spain are to safeguard their democratic character.

Read the rest of this entry…

Print Friendly
Published on October 3, 2017
Author:          Filed under: Analysis

The Brazilian Constitution of 1988, the Armed Forces, and the Coup d’Etat

Emilio Peluso Neder Meyer, Marcelo Andrade Cattoni de Oliveira, & Thomas da Rosa Bustamante, Federal University of Minas Gerais, Brazil, Faculty of Law.

On the 17th of September 2017, Brazilian Army General Antonio Hamilton Martins Mourão, during a lecture for a Masonic Lodge in Brasília, advocated the possibility of an interference of the Armed Forces in Brazilian politics. He said that “the institutions [must] resolve the political crisis by judicial means, removing from public office all individuals involved in criminal offenses; for otherwise we [the Army] will have to impose this remedy.”[1] He added that such a solution would not be easy, generating problems, but that the members of the Armed Forces should meet their commitment to the Homeland, regardless of whether they are applauded or not. Finally, he said that they must have a clear conscience that they “did their best” [to find a solution], in the sense that “if it must happen, it will happen.”[2]

Instead of imposing disciplinary measures on Mourão, the Army Commander, General Eduardo Villas Bôas, gave a television interview in which he tried to justify the action of his subordinate, calling him a “good soldier” and claiming that his pronouncement was understood out of its context. He argued that the Armed Forces only act upon request of one of the constituted powers or on situations of imminent chaos.[3] The interview was broadcast right after the civilian Minister of Defense Raul Jungmann requested that something be done with the military public servant at issue.

To make things worse, after the interview, several reserve militaries publicly endorsed General Mourão’s pronouncements, including the ex-Commander of the troops sent to Haiti in the peace force of 2004, General Augusto Heleno.[4] Heleno said that Mourão merely explained “in a clear and honest way” the content of the provisions of the Constitution of 1988, and that although “the left,…panicking after its continuous failures, saw in it a threat of military intervention” the idea that the military could pose a threat to legality is “ridiculous”.[5]

These statements were loudly praised or criticized. Sérgio Abranches, a leading Brazilian political scientist, sharply opposed Villas Bôas’ assertion that Mourão was a “good soldier,” arguing that he was actually proposing a coup d’état. Indeed, the Army’s Disciplinary Statute, Decree 4.346/2002, in its Attachment I, number 57, explicitly proscribes active military figures from making public political or partisan speeches without their commander’s authorization. Abranches noted that the implications of that rule to the facts at issue was not straightforward, given that several members of the military organization either silently or openly supported Mourão. These facts would contribute to a political crisis similar to the one that Brazil confronted in 1954 and 1964. It is remarkable that Abranches is one the Brazilian analysts who has always called attention to the perils of the supposed absence of effective control by the civilians of the Armed Forces, even after the creation of the Ministry of Defense.[6]

There are other facts that should lead us to refrain from calling Mourão a “good soldier”. In 2015, as Commander of the forces in southern Brazil, he allowed another soldier to praise the honor of one of his colleagues, Colonel Brilhante Ustra, who had been accused by several political opponents and state institutions of commanding the torture center in the city of São Paulo known as DOI-CODI (which stands for “Department of Information Operations – Center for Internal Defense Operations”). Ustra was also convicted by a Brazilian court in a civil lawsuit for taking part in the torture of a whole family, the Teles.[7] Mourão, after the ceremony, was dismissed from the southern command and reassigned to a financial department without direct leadership over troops.[8]

Read the rest of this entry…

Print Friendly

What’s New in Public Law

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

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 Supreme Court of Kenya explained the detailed reasons that led the Court to declare the nullification of the last presidential election.
  2. The Supreme Court of Israel rejected a petition seeking to obtain a Court’s order to force the Police to investigate Prime Minister Netanyahu on the so-called Submarine Affair.   
  3. The U.S. Supreme Court halted the execution of a death-row inmate in Georgia in a divided decision.
  4. The Czech Constitutional Court dismissed a claim filed by a politician who alleged biases in the Supreme Court’s investigation against him.
  5. The Supreme Court of Japan upheld the 2016 election of the Upper House of Parliament.
  6. The Supreme Court of Thailand sentenced former PM Yingluck Shinawatra to 5 years in prison.
  7. The U.K. Supreme Court will consider Northern Ireland’s prohibition on abortion on 24-26 October 2017.
  8. The Supreme Court of Brazil held that imparting religious education in state schools is constitutional as long as students are allowed to decide whether they want to attend.
  9. The Supreme Court of Israel ruled that the attendance of Court’s members to an event celebrating the West Bank settlement was not required.

In the News

  1. U.S. President Donald Trump expanded the travel ban for foreign visitors to the United States.
  2. The Canadian Government joined the U.S. in imposing sanctions on high-ranking Venezuelan officials due to their anti-democratic behavior.
  3. Angela Merkel’s CDU retained the majority in the German Bundestag, while nationalist party AfD obtained 94 seats.
  4. The number of acquitted conscientious objectors to compulsory military service in South Korea has exponentially risen in 2017.
  5. The Venice Commission published its opinion on the draft Constitution of Georgia.
  6. The Parliament of Georgia approved several amendments to the Constitution, which would institute a parliamentary-based system.
  7. The opposition Socialist Party of Moldov launched a campaign to change Moldova’s parliamentary system into a presidential one in the wake of the Constitutional Court’s decision that struck down a referendum aimed at expanding the presidential attributions.  
  8. Poland’s President Andrzej Duda presented a draft proposal for reorganizing the National Council of the Judiciary. After a meeting with some MPs he modified some of his proposals.
  9. The Prime Minister of Japan, Shinzo Abe, dissolved the Lower House of Parliament in order to call new elections in October.
  10. The ruling party of Uganda proposed a bill to remove age limits for being presidential candidate, allowing current President Museveni to run for the next elections.
  11. The Irish Government set May or June next year as possible dates to hold a referendum on the eighth amendment to the Constitution that prohibits abortion in most cases.
  12. French Political Party Republicans obtained a victory in the last Senatorial election, while Macron’s La République en march won less than 8 percent of the seats.
  13. In a referendum held on September 25, Iraqi Kurds overwhelmingly voted in favor of independence from Iraq.
  14. In a recent referendum, Swiss voters rejected a plan for reforming the system of pensions.
  15. Catalonia held a referendum regarding its independence from Spain on October 1, 2017, amidst social tensions and police interventions against voters in some of the ballot-box areas.

New Scholarship

  1. Maurice Adams, Jaakko Husa & Marieke Oderkerk (eds.), Comparative Law Methodology (2017) (this two-volume book compiles and organizes some of the most relevant articles already published by leading scholars addressing methodological issues of comparative law)
  2. Angela K. Bourne & Fernando Casal Bértoa, Mapping ‘Militant Democracy’: Variation in Party Ban Practices in European Democracies (1945-2015) European Constitutional Law Review (2017) (offering an empirical account for party bans practices across 37 European countries after WWII and focusing on the legal and political contexts in which they happened)
  3. Reidar Maliks & Johan Karlsson Schaffer (eds.), Moral and Political Conceptions of Human Rights (2017) (debating the moral and political nature of Human Rights, and furthering this discussion in new areas such as socio-economic rights, indigenous rights, the rights of immigrants and the human rights responsibilities of corporations)
  4. Raul A. Sanchez Urribarri, Between power and submissiveness: constitutional adjudication in Latin America, in Rosalind Dixon & Tom Ginsburg (eds.), Comparative Constitutional Law in Latin America (2017) (offering an introduction to help to make sense of the different experiences that constitutional courts in Latin America have had in controlling power, influencing policy, and protecting citizens’ rights)
  5. Ronojoy Sen, India’s Democracy at 70: The Disputed Role of the Courts Journal of Democracy (2017) (examining three aspects of the Supreme Court of India in the wake of the Indian democracy’s 70th anniversary: its struggle with other branches, its quest for judicial independence and the accusations of being an activist Court)
  6. Silvia Suteu, The Scottish independence referendum and the participatory turn in UK constitution-making: The move towards a constitutional convention Global Constitutionalism (2017) (assessing the possibility of calling a constitutional convention for the UK)

Special Announcements

  1. Professor Rebecca Cook (University of Toronto Faculty of Law) shared an analysis of the Chilean Constitutional Tribunal’s decision that upheld a statute that decriminalizes abortion in three cases.
  2. The Indian Journal of Constitutional & Administrative Law presents its inaugural issue to the academic community around the globe.
  3. The latest issue of the European Constitutional Law Review has just been published.

Calls for Papers and Announcements

  1. The University of Münster calls for papers to its forthcoming conference on ‘Challenges for public law in modern regulatory states’, which will be held on March 2-3, 2008. The deadline for submissions is October 10, 2017.
  2. The Central and Eastern European Forum of Young Legal, Political and Social Theorists invites submissions for its 10th annual conference on ‘Constitutional Identity and Social Memories in Central and Eastern Europe’, to be held on May 3-4, 2018, at the Faculty of Law, West University of Timisoara, Romania. Abstracts should be submitted by 15 January 2018.
  3. The Centre for European Research in Maastricht (CERiM) at Maastricht University convenes a Workshop on ‘Challenges and Opportunities for EU Parliamentary Democracy: Brexit and beyond’–which will take place on 18-19 January 2018–and invites interested scholars to submit proposals for papers by October 20, 2017.  
  4. The European Consortium for Political Research (ECPR) is organizing its 2018 General Conference to be held at the University of Hamburg on 22-25 August, 2018. The deadline for submitting section proposals is November 15, 2017, while paper and panel proposals should be sent by February 15, 2018.  
  5. Columbia Law School, the University of Southern California Center for Law, History & Culture, UCLA School of Law, Georgetown University Law School, Stanford Law School, and the University of Pennsylvania invite paper proposals for the annual meeting of the Law & Humanities Junior Scholar Workshop, to be held at Stanford Law School, on June 4 and 5, 2018. The submission deadline is January 5, 2018.
  6. The Israeli chapter of ICON-S and Radzyner Law School at IDC Herzliya convene the Fourth Annual Conference of ICON-S Israel to be held at IDC on March 11-12, 2008. Interested researchers can submit their panel or paper proposals by October 31, 2017.
  7. PluriCourts is organizing a workshop on ‘The political and legal theory of international courts and tribunals’ on June 18-19, 2018. The deadline for submitting abstracts is November 1, 2017.
  8. The Oxford Centre for Animal Ethics invites submissions to its ‘Fifth Annual Oxford Animal Ethics Summer School’ on ‘Animal Ethics and the Law’ to be held on July 22-25, 2008. The deadline for submitting abstracts is January 1, 2018.
  9. KIMEP University’s School of Law is accepting proposals for its forthcoming ‘Central Asian Yearbook of International and Comparative Law’. The submission deadline is November 1, 2017.
  10. The Toronto Group for the Study of International, Transnational and Comparative Law invites contributions for its 11th Annual Conference on ‘Boundaries, Conflicts and Alliances: Interactions between International, Transnational and Comparative Law’, which will take place on March 1-2, 2018 at Osgoode Hall Law School. The deadline to email abstracts is November 5, 2017.

Elsewhere Online

  1. Richard Albert, Canada’s moment for self-reflection, not just celebration, Toronto Star
  2. Vincent Depaigne, Why we still believe in the state, OUPblog
  3. Thomas Fleiner, Decisions of the Swiss Voters and the Majority of the Cantons on September 24, 2017, Constitutional Change Blog
  4. David Gans, The Supreme Court’s New Term, Balkinization
  5. Javier Garcia Oliva, Why the Constitutional Treatment of Religion in Great Britain Matters in Religious Disputes, U.K. Const. L. Blog
  6. Benjamin N. Gedan, For Venezuela’s Sake, Dismantle the Organization of American States, The Wall Street Journal
  7. Samuel Issacharoff, Safeguarding Democratic Institutions, Verfassungsblog
  8. Tomasz Tadeusz Koncewicz, Understanding the Politics of Resentment, Verfassungsblog
  9. Raphael Minder, Catalonia’s Independence Referendum: What’s at Stake?, The New York Times
  10. Michela Palese, Independent costing of election programmes: lessons from the Netherlands, UCL The Constitution Unit
  11. Steven D. Schwinn, Another Reason Why Justice Gorsuch Matters: Public Sector Unions, Constitutional Law ProfBlog
  12. İlker Gökhan Şen, On Legal Aspects of the Independence Referendum of Iraqi Kurdistan, Verfassungsblog
  13. Amir Taheri, Khamenei Orders New Supervisory Body to Curtail Government, ASHARQ AL-AWSAT
  14. Cem Tecimer, Rethinking Turkish Secularism: Towards “Unofficial” Islamic Constitutionalism? Verfassungsblog
  15. Mila Versteeg, What Europe Can Teach America About Free Speech, The Atlantic
Print Friendly
Published on October 2, 2017
Author:          Filed under: Developments

Introduction to I-CONnect Symposium: The Independence Vote in Catalonia

[Editor’s Note: I-CONnect is pleased to feature a five-day symposium on today’s independence vote in Catalonia. We are grateful to our convener, Professor Zoran Oklopcic, for assembling an outstanding group of scholars to bring our readers helpful context and analysis during this important moment for the region. Oklopcic is a constitutional and political theorist with specializations in constituent power, republicanism, secession, popular sovereignty and the (de)construction of boundaries in public law. His book Beyond the People: A Constitutional Theory of Deep Territorial Pluralism is forthcoming with Oxford University Press. –Richard Albert]

Zoran Oklopcic, Department of Law and Legal Studies, Carleton University, Ottawa

Today is October 1, and Catalans vote on their independence from Spain. Regrettably, the fears of many seem to be coming true. Instead of a carnival of democracy, or a tense stand-off between protesters and police, we are witnessing scenes of police repression on the streets of Barcelona. Even among those who follow the constitutional conflict between Madrid and Barcelona more closely, this is a remarkable turn of events.

What many have considered to be an elaborate, yet increasingly farcical game of chicken, whose true objective was never the independence of Catalonia but rather the best institutional and financial deal given the circumstances, has turned out to be a veritable standoff between irreconcilable constitutional visions.

However it ends, it already presents a watershed moment between two constitutional eras: one which began in 1978 with the transformation of Spain into what became known as El Estado de las Autonomías, and one whose birth—for better or worse—we seem to be witnessing today on the streets of Barcelona. However this conflict ends constitutionally—with Spain reconstituted as a further decentralized quasi-federal state, or Spain reconstituted as a proper multinational federation, or Catalonia as a sovereign state separate from Spain—the dramatic images of confrontation in Barcelona are more than just deeply disconcerting. For many who approach the conflict in Catalonia as constitutional scholars they will also be politically surprising, personally disappointing, perhaps even professionally disorienting.

Read the rest of this entry…

Print Friendly
Published on October 1, 2017
Author:          Filed under: Analysis

Commentary: “Canada’s moment for self-reflection, not just celebration”

[Editor’s Note: This commentary was originally published in the Toronto Star in print and online here on Wednesday, September 28, 2017.]

Richard Albert, Boston College Law School

Five years ago, United States Supreme Court Justice Ruth Bader Ginsburg remarked, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.” Where would she look instead? To Canada and South Africa.

Justice Ginsburg’s revelation shocked her fellow Americans but it did not come as a surprise to those of us who study the constitutions of the world. For years, the United States Constitution has declined in its global influence, due in no small part to the limited and in some cases outdated rights and liberties its text protects, namely the unusual right to bear arms.

Canada has displaced the United States as one of the world’s great constitutional superpowers, rising to prominence on the strength of our modern Canadian Charter of Rights and Freedoms. The Charter protects all manner of speech and thought, identity and group rights, and even affirmative action rights, which for Americans is a controversial issue that divides the country perhaps more than any other constitutional question except abortion.

Canada’s global importance has grown as we have approached and now arrived at the sesquicentennial of Confederation. Since 1867, Canada has evolved into a global economic, cultural and now dominant constitutional force.

Read the rest of this entry…

Print Friendly
Published on September 29, 2017
Author:          Filed under: Analysis

India’s Supreme Court Expands Freedom

Menaka Guruswamy, Research Scholar and Lecturer, Columbia Law School and Advocate, Supreme Court of India

[This article was originally published in the New York Times on September 10, 2017.]

On Aug. 24, the Supreme Court of India, in a rare unanimous judgment, declared privacy a constitutional right.

The court unflinchingly reasoned that the rights to life and liberty of which privacy is a part protect the sanctity of the home and relationships like marriage, procreation and sexual orientation.

It is a ruling that will forever affect the social fabric of this country and reaffirm a constitutional morality in a time of deep social and political division — a judgment that can be equated with Brown v. Board of Education in the United States.

The ruling comes as the Hindu nationalist Bharatiya Janata Party, which came to power in 2014, is attempting a cultural reconfiguration of Indian society — policing choices about food, gender roles, sexuality, marriage and religion. Such actions are at odds with the values of secularism, equality and dignity, and freedom of expression, conscience and religion that are enshrined in India’s progressive Constitution of 1950. This troubling context makes the decision of the Supreme Court especially empowering.

The Supreme Court is also ground zero for challenges to the efforts of Prime Minister Narendra Modi’s government to force all Indians to sign up for the biometric databank, called the Aadhar project, in which retina scans, fingerprints and demographic information is stored under 12-digit unique identification numbers. The privacy ruling was necessary since the constitutional status of privacy had to be established before the court adjudicated on various challenges to the Aadhar database that are still pending.

Read the rest of this entry…

Print Friendly
Published on September 27, 2017
Author:          Filed under: Developments