–Tokujin Matsudaira, Kanagawa University, Japan
Prime Minister Shinzo Abe is reportedly going to dissolve the House of Representatives (Shugiin), the lower house of the Japanese Diet, for a snap general election.  The ruling coalition closed the Diet this June amid an outburst of scandals surrounding Mr. Abe that dragged down his popularity. The opposition parties demanded an extraordinary session to investigate government officials involved in the scandals, including the PM. After a long delay, the ruling coalition finally agreed to reconvene the Diet on September 28. But according to media reports, the PM wants to dissolve the lower house on the same day and thus there will be no parliamentary session at all. Mr. Abe is expecting to take advantage of a divided opposition and the threat from North Korean missiles—both give him a boost in support and provide distractions from scandals.
Many constitutional law scholars have raised concerns over the Abe administration’s use of the dissolution power.
—Richard Albert, Boston College Law School
In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.
This edition of “Five Questions” features Laurence Claus, Professor of Law at the University of San Diego. His full bio follows below:
Laurence Claus is Professor of Law at the University of San Diego. His work focuses on comparative public law and legal theory. He holds B.Econ. and LLB degrees from the University of Queensland and a D.Phil. in Law from Oxford. Before graduate studies, he clerked for the Chief Justice of Queensland, Hon. John Macrosssan, and then worked for the Australian Human Rights Commission President, Hon. Sir Ronald Wilson, on a commission of inquiry into government misconduct, and at the Australian High Court on the Court’s landmark early implied freedom of speech cases. He served for three years in the Office of Foreign Litigation, United States Department of Justice, based at the American Embassy in London, where he helped supervise civil litigation in European domestic courts to which the United States was party. He clerked for Hon. Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit before joining the faculty at the University of San Diego. He is author of Law’s Evolution and Human Understanding (OUP, 2012).
1. Tell us about something you are working on right now.
Constitutional strategies for apportioning power vertically and horizontally, the strategies of enumeration by subject and separation by kind. I have written and continue to write about conceptual flaws in these two strategies, and will be writing about the implications of those conceptual flaws for constitutional interpretation. Relatedly, I’m writing a critique of the American national unitary executive model for two forthcoming conferences.
2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?
I try to demarcate days on which I can write from the start – no email, no checking the news, no admin, no social interactions. When my day starts with those other things, it’s at risk of staying with them too much to get deeply into the zone. That’s especially so when I’m starting something. Once the project is taking shape, distractions don’t distract quite so much. But till there’s a feeling of growing excitement and accomplishment, the siren song of the social world has to be shut out.
3. Whose scholarship jumps to the top of your reading list when she or he publishes something new?
The top of my reading list tends to fill with up-and-coming con law scholars whose insights are less likely to be building on antecedent work of their own with which I’m already familiar, and are therefore more likely to surprise.
4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?
Democracy and Distrust. What justifies wide ranging constitutional lawmaking by people chosen to decide disputes? We see even legal systems that have long resisted judicial lawmaking making exceptions for their constitutional adjudicators. When I was consulting for the American Bar Association’s Rule of Law Initiative on a study of the new Constitutional Court of Jordan, I found myself elaborating in discussions with Jordanian jurists and political leaders on what seemed to me essential aspects of expository opinion writing. When legal systems with no established culture of judicial opinion writing have constitutional adjudication superimposed atop them, those charged with the task swiftly discover that deciding the constitutionality of statutes isn’t like flipping a light switch, turning laws on and off. To fulfil their constitutions’ promises to their people, constitutional courts need to elaborate their reasoning in ways that both add to the law of their constitutions and often “read down” lesser laws to leave governing officials empowered but constrained in their exercise of that power. How to reconcile this role with our commitment to democratically accountable government is a conversation in which Ely just keeps coming up.
5. What are some of the big questions ripe for inquiry in your area of research interest?
How can we better integrate constitutional law theory with jurisprudence? I think we need a well developed theory of law to have a coherent theory of constitutionalism, and this calls for constitutional law scholars and legal philosophers to engage deeply with each others’ projects. Where constitutional law scholarship shies away from that engagement, it is prone to becoming equivocal and to losing long term impact. For example, constitutional law scholarship’s use of the term “authority” not infrequently slides back and forth (sometimes within the space of a paragraph) between serving as a synonym for law and government and adverting to a source of law and government. Such chameleonic usage risks compromising the arguments in which it occurs. Use of “authority” synonymously with law and government can survive and assimilate inside a conventionalist account of law and government, whereas authority as a source of law and government does not fulfill the function in a conventionalist account that it did in historic accounts that saw law and government as expressions of exogenously derived moral rights to rule. Our language of authority and duty to obey did not come from a conventionalist account of law and government, but if the rule of recognition at the core of the legal system is just a social convention, then the whole system is essentially conventional, not authoritarian in the historic sense. We con law types want to talk about what morally justifies attempts at lawgiving, about when law observance is morally required, about how constitutions ought be interpreted. Coming up with answers to any of these questions depends on a coherent vision of the character and role of authority.
—Stefanus Hendrianto, Boston College
In the last five confirmation hearings in the United States Senate for nominees to the U.S. Supreme Court (Roberts, 2005; Alito, 2006; Sotomayor, 2009; Kagan, 2010; and Gorsuch, 2017), the role of comparative constitutional law in the American constitutional system was one of the main questions. Very recently, in the confirmation hearing of Justice Joan Louise Larsen, of the Michigan Supreme Court, to be a United States Circuit Judge for the Sixth Circuit on Sep 6, 2017, the Senate Judiciary Committee also raised the issue of comparative inquiry. The opposition to comparative law, however, has been confused by the conflation of international law and comparative law and by a lack of careful distinction between various sources of international law. Moreover, the questions during the hearing seemed to be artificial as the Senators did not dive into the depth of any nominee’s thought on comparative inquiry.
Let’s revisit the confirmation hearing of Justice Gorsuch earlier this year. On March 22, 2017, the third day of the confirmation hearing, Senator Ben Sasse of Nebraska asked Justice Gorsuch, “as a sitting Supreme Court Justice with a task upholding the Constitution, is it ever appropriate to cite international law, and if so why?” There are two very different types of law at issue here: international law and foreign law (through comparative inquiry). These two very different types of law are sometimes conflated by politicians and commentators, which has confused the debate on this subject. It was not clear during the hearing whether Senator Sasse really meant international law per se, foreign law, or both. Justice Gorsuch in his answer rightly distinguished international law and foreign law, and argued that they should receive different treatment. In a nutshell, he opposes the use of foreign law in U.S. constitutional interpretation, but he recognizes a variety of different types of international treaties or agreements that create binding international obligations for the United States.
About a week ago, in the confirmation hearing of Judge Joan Larsen, Senator Orin Hatch of Utah mentioned that in recent years, one of the important issues related to the nominee’s judicial philosophy is “whether judges may use foreign law to interpret domestic law such as the Constitution.” Senator Hatch went on to cite Justice Larsen’s 2004 law review article titled Importing Constitutional Norms from a “Wider Civilization” and asked Justice Larsen to elaborate on her argument for the use of “international law” in domestic legal interpretation. Again, here, Senator Hatch conflated international law and comparative law. He began his question with a narrative on “foreign law,” but then he asked Justice Larsen to explain her position on the use of “international law.” For the record, Justice Larsen in her article made a clear distinction between the use of foreign law and international law in domestic constitutional interpretation.
Justice Larsen in her answer, however, focused primarily on the use of foreign law; she cited Washington v. Glucksberg, which exemplifies the “empirical” use of comparative experience. In Glucksberg, the Court was asked to decide whether the State of Washington’s ban on physician-assisted suicide violated the Due Process Clause of the Fourteenth Amendment. The Court then looked to the Netherlands, which at that time was the only place where experience with physician-assisted suicide and euthanasia had yielded empirical evidence. Justice Larsen argued that “the Court looked at the practice of Netherlands, not to determine whether or not our law should follow the Netherlands, but rather to figure out whether or not a particular result would ensue.”
Book Review: Giovanni Piccirilli on “Framing the Subjects and Objects of Contemporary EU Law” (Samo Bardutzky & Elaine Fahey eds., 2017)
[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Giovanni Piccirilli reviews Framing the Subjects and Objects of Contemporary EU Law (Samo Bardutzky & Elaine Fahey eds., Edward Elgar Publishing 2017)]
–Giovanni Piccirilli, Assistant Professor of Constitutional Law, LUISS Guido Carli, Rome
The debate on the current status and the prospects of European integration has been more vivid than ever in the last few months, considering that several fundamental aspects of the European project are undergoing deep transformations, if not real crises.
The deepest economic crisis in EU history harmed its output legitimacy, which for decades constituted one of the main points supporting continental integration. Even its input legitimacy – its aspect related to democracy – proved to be at a serious impasse: every election in the last 12 months (in Austria, France, the Netherlands and the UK) was dominated by the fears of anti-European (when not xenophobic) parties. Further, institutional reforms democratically passed in some Member States in Central and Eastern Europe are creating dangerous threats to the rule of law. Finally, the post-Brexit shock, the unprecedented decision of a Member State to leave the Union, dismantled the grand narrative of a relentless progression of continental integration.
These disruptive trends not only are putting into question the endurance of the integration project as we are used to knowing it, but also at the same time require an effort to analyze possible deficits, inconsistencies and failures of the legal framework underpinning it, that proved it unable to prevent and to promptly react to such dangerous criticalities.
In such a troubled scenario, a new methodological platform to investigate and (possibly) understand the current condition of EU law has been proposed in the recently published collection by Edward Elgar, edited by Samo Bardutzky and Elaine Fahey, entitled Framing the Subjects and Objects of Contemporary EU Law.
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 email@example.com.
Developments in Constitutional Courts
In the News
1. Charles R. Calleros., , 45 Georgia Journal of International and Comparative Law 259 (2017) (comparing the 2016 French obligation law reform with the American unconscionability doctrine, and examining the benefits of combining judicial powers of intervention with statutory and administrative regulation)
2. Charles M. Fombad, , Oxford University Press 2017 (identifying and examining the different models of constitutional review in Africa and providing a comparative study of the contemporary constitution adjudication practice)
4. Jack I. Garvey, , International Lawyer (forthcoming) (providing a lens for management of mass migration consistent with established international refugee law, human rights law, humanitarian law, and national control of immigration)
Calls for Papers and Announcements
1. The African Network of Constitutional Lawyers (ANCL), in collaboration with the Department of Law at the University of Botswana and partners, for its next ANCL Biennial Conference to be held in Gaborone, Botswana, on October 11-14, 2018, on the theme “Courts, Power and Constitutional Law in Africa”
2. The Human Rights Centre at the University of Padova, Italy, for its International Conference on the “Role of Human Rights Research: Current Challenges and Future Opportunities,” to be held November 27th–28th, 2017 at the University of Padova.
5. The Institute for Comparative Federalism of Eurac Research, Bolzano/Bozen, the Faculty of Law and the School of Political Science and Sociology at the University of Innsbruck for its Winter School on Federalism and Governance 2018 to be held from February 5th to 16th at the Faculty of Law and School of Political Science and Sociology, Leopold-Franzens–Universität Innsbruck, Austria and at the Institute for Comparative Federalism, Eurac Research, Bolzano/Bozen, Italy.
—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.]
At times of profound and disorienting change it can be hard to contemplate the future. When we are “swimming through the historical moment”, as Tamim Ansary puts it, the future becomes more amorphous, clouded, as though our eyes have grown cataracts. As a teenager in the 1990s the future seemed so clear to me – not its content, but its shape. Whatever it was going to be, it could only be better. I may be from the last (Western) generation to have this sense of certainty, coming of age at the height of the liberal consensus, deeply imbued with the faith that law, technocracy and liberal democracy were the troika pulling us to the end of history, with the sole remaining challenge to perfect this global project and proselytise to laggards. For so many public lawyers today that worldview came to occupy all horizons of possible thought.
In the present era of democratic decay – the incremental degradation of the structures and substance of liberal constitutional democracy worldwide – what are the possible futures we can envisage, and why does this matter for public law? Faced with a bewildering news cycle, we tend to focus on the immediate future: Will Trump be impeached or resign? With a crucial Constitutional Court judgment pending, when and how will Zuma be ousted in South Africa? Will Japan’s increasingly autocratic premier Shinzō Abe manage to consolidate power by calling a snap election in October? Might Poland’s Law and Justice (PiS) government lose the 2019 general election? Medium-term questions are even harder to answer. In, say, five years’ time – 2022 – what will the world look like? What about ten years’ time? What will be the Trump presidency’s long-term legacy for the health of US constitutional democracy? If PiS loses power to a more democratically-minded administration, how to repair the constitutional damage wrought since 2015? What will a post-Zuma South Africa become? Will it prove difficult to reverse the Abe government’s significant stifling of press freedom? What does Macron’s plummeting support mean for the future of centrist liberalism as a political force in France and Europe more widely?
150 Years On: What is the Constitution of Canada?–Part 3 of 3–A Doctrinal Approach to the Problem of Identification
Editor’s Note: This is the third post in a three-part series to mark the 150th anniversary of Confederation in Canada. In their three posts, Maxime St-Hilaire, Patrick Baud and Éléna S. Drouin offer critical reflections on a provocative question: What is the Constitution of Canada? Their first post is available here and their second here.
––Maxime St-Hilaire, Université de Sherbrooke; Patrick F. Baud, McGill University; and Éléna S. Drouin, McGill University
This last post of our series aims to clarify how one can better define the procedure that allows the amendment of the supreme law of Canada, a procedure that, as we submitted in our previous posts, represents the best criterion to determine whether or not a provision is part of this very supreme law.
The Canadian constitutional amendment procedure: a new, thought-economical, account
Canada’s threefold constitutional amendment procedure is mostly set out in Part V of the Constitution Act, 1982 (CA 1982). It is asymmetrical, composed of a default, or “normal” procedure and two specific, or “exceptional” ones. We will start with the two exceptions.
The first and most onerous of all three procedures resides in the combination of sections 41 (necessary authorizations), 46 (initiative and revocation of authorization), 47 (overriding of the Senate’s failure to authorize an amendment by the House of Commons), 48 (Privy Council’s duty to advice the Governor General to issue the proclamation), and, most likely subsection 39(2) (imposing a three-year time limit starting with the first authorizing resolution). It is the most burdensome procedure because it requires the authorization of all ten provincial legislative assemblies. This procedure applies to amendments in relation to:
41…(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province; (b) the right of a province to a number of members of the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force; (c) subject to section 43, the use of the English or the French language; (d) the composition of the Supreme Court of Canada; and (e) an amendment to this Part.
The second specific procedure is provided for by the combination of sections 43, 46, 47, 48, and arguably, subsection 39(2).
Editor’s Note: This is the second post in a three-part series to mark the 150th anniversary of Confederation in Canada. In three separate posts, Maxime St-Hilaire, Patrick Baud and Éléna S. Drouin offer critical reflections on a provocative question: What is the Constitution of Canada? Their first post is available here.
—Maxime St-Hilaire, Université de Sherbrooke; Patrick F. Baud, McGill University; and Éléna S. Drouin, McGill University
In Canadian constitutional law, it is not tautological to say, as we did in our previous post, that, as provided for by subsection 52(3) of the Constitution Act, 1982 (CA 1982), the supreme law of Canada is composed of all provisions that may be only amended in accordance with it. This is precisely what makes the difference between (formally) ordinary and (formally) constitutional “written” laws—an ordinary law cannot definitively determine how it is to be amended. While it is true that we do not know the exact substantive extent of the supreme law of Canada, we do know that the constituency competency (which again, must not be mistaken for the idea of “constituent power”), which was transferred to Canada in 1982 through an amendment “formula”, is meant to be exhaustive, or as Richard Albert puts it, a “complete code”. This is what the “patriation of the constitution”—effected by the Canada Act 1982 and its Schedule B, the CA 1982—was chiefly about. This means, as the Supreme Court explained in its 1982 opinion rejecting Quebec’s claim that it possessed a conventional veto over constitutional amendments, the “new procedure for amending the Constitution of Canada…entirely replaces the old one in its legal as well as in its conventional aspects”. It is through subsection 52(3), which we propose to use as the criterion for defining the supreme law of Canada that allows us to conceive of the non-recognition by, or “irrelevance” for, Canadian law, of the hypothetical repeal by the Parliamentary of the United Kingdom of section 2 of the Canada Act 1982, which reads: “[n]o Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law”.
Any provision elsewhere in the supreme law related to constitutional amendment procedure is implied to have been repealed by Part V of the CA 1982. We are aware of five such provisions: section 3 of the Constitution Act, 1871, which allowed the federal parliament to alter a province’s boundaries only with the authorization of the affected province’s legislature; and the provisions in each of the agreements, made between the Federal executive and those of Alberta, British Columbia, Manitoba, and Saskatchewan; concerning public lands and natural resources of these four provinces; and constitutionalized by the British/imperial Constitution Act, 1930, which reproduced them in schedules, that allow those agreements to be “varied by agreement confirmed by concurrent statutes of the Parliament of Canada and the Legislature of the Province”.
The supreme law of Canada: a new, procedural definition
We can therefore define the content of the supreme law of Canada as being composed of all the “written” law, that is, the legal provisions, whose amendment, repeal or enactment now (and since April 17, 1982) fall under the constituent competency that is established by the true and variable constitutional amendment procedure established by the CA 1982. As we said in our previous post, this procedure is mostly provided for in Part V of the CA 1982, but includes section 35.1, which is in Part II of the CA 1982, and excludes sections 44 and 45, which are in Part V. This said, this post is not the best venue to detail the constitutional amendment procedure and the ongoing complex (and complicated) jurisprudential and academic debates it generates.
Editor’s Note: Today we begin a three-day series to mark the 150th anniversary of Confederation in Canada. In three separate posts, Maxime St-Hilaire, Patrick Baud and Éléna S. Drouin offer critical reflections on a provocative question: What is the Constitution of Canada? We thank them for sharing their views in this forum.
—Maxime St-Hilaire, Université de Sherbrooke; Patrick F. Baud, McGill University; and Éléna S. Drouin, McGill University
Canada’s constitution was for many decades perhaps best known for combining British-style constitutional monarchy and parliamentary democracy with American-inspired federalism, albeit in a colonial form. Such a mixed constitution would have been considered improbable by the constitutional scholars of that age, such as A.V. Dicey (chap. III).
The Canadian federation’s constitution, which was initially set out in Canada’s Constitution Act, 1867 (CA 1867) served as a model for the Commonwealth of Australia Constitution Act in 1901. Over three decades ago, the Canada Act 1982 and its Schedule B, the English and French versions of the Constitution Act, 1982 (CA 1982), transferred full and exclusive constituent competency to Canada. This final step in Canada’s peaceful transition from British colony to independent country continues to serve as a model throughout the Commonwealth. Yet the constitutional reforms brought about in 1982 continue to raise the following essential, theoretical question: how, absent a revolution, can the full constituent competency be truly transferred rather than simply delegated to the former colony by the imperial legislator?
A basic question with no clear answer (yet)
The CA 1982 also brought major reforms to Canada’s constitution. In the past 35 years, Canada has become renown for its Charter of Rights and Freedoms, which served as one of the models for South Africa’s Bill of Rights, as well as the recognition and affirmation of Aboriginal and treaty rights in section 35 of the CA 1982, section that currently informs ongoing Australian debates on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. But these oft-debated features of Canada’s constitution mask a more fundamental problem facing Canadian constitutionalists—they cannot answer what should be a simple question: what is the supreme law of Canada composed of? This question is one without a clear answer in Canadian law. For one, there exists no reliable list of the supreme law’s components and no such list could be established. Rather, it seems that the supreme law of Canada includes any possible provision that, based on the nature of its contents, falls under one of the (real) constitutional amendment procedures that the supreme law provides in certain of its key components. However, one of the amendment procedures does not specify which contents it applies to, yet it presents itself as the “normal,” that is to say, residual or default procedure. This draws a vicious circle. In our view, this problem is one that should be of interest not only to Canadian constitutionalists. This problem also particularly highlights the issues that can arise from perfectible constitutional drafting and the interaction among the constitutional amendment procedure and the rest of a constitution, notably a federative one.