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I·CONnect

Blog of the International Journal of Constitutional Law

Announcement: ICON-S Brazil Panels on Megacities and Constitutionalism

The ICON-S Brazilian Chapter is promoting two discussion panels on the issues of megacities and constitutionalism on October 30th.

In the first panel, which will be in English, Professor Ran Hirschl will present his new book: ‘City, State: Constitutionalism and the Megacity’, published this year by Oxford University Press. The book discusses problems related to urbanization and the growth of megacities around the world, analyzing this phenomenon while considering the silence of contemporary constitutions regarding this matter. Professor Virgílio Afonso da Silva and Estefânia Barboza will join Prof. Hirschl as commentators.

In the second panel, which will be in Portuguese, Professors Angela Costaldello, Bianca Tavolari and Rosangela Luft will discuss the applicability and implications of the concept of “megacity” in the Brazilian context. In addition to addressing the constitutional law issues, they will present insights from the perspective of their ongoing research in the field of urban law.’

Please see the following link for details and registration: even3.com.br/iconbr.

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Published on October 13, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


Susan Achury Plaza, Texas Christian University


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

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

Developments in Constitutional Court

  1. The Colombian Supreme Court ruled protecting the right to protest against police violence.
  2. The US Court of Appeals for the Second Circuit ruled against an attempt to block the subpoena to obtain President Donald Trump’s tax record after the Supreme Court ruled that the president does not have broad immunity when it comes to state grand jury subpoenas.
  3. European Court of Human Rights has decided to apply Rule 39 and now calls on all States directly or indirectly involved in the conflict, including Turkey, to refrain from actions that contribute to breaches of civilians Convention rights and to respect their obligations under the Convention.
  4. Canada Supreme Court to consider the constitutional rights of Native Americans with US citizenship.
  5. Mexican Supreme Court to decide on the constitutionality of voting by a secret ballot on a constitutional reform that involves human rights violates freedom of expression, access to information, and political participation of the LGBT + population in Yucatán.
  6. The Constitutional Court of Ecuador approved a referendum relating to mining activities, but it limited its effects to future concessions.

In the News

  1. In the US, the Senate Judiciary Committee is set to begin Amy Barrett’s confirmation hearings October 12.
  2. Armenia’s Constitutional Court failed to elect its new chair after the amendment calling for the gradual resignation of seven of the court’s nine judges.
  3. Constitutional Court rejects appeal against Law on Criminal Enforcement
  4. Nationalist Movement Party (MHP) leader Devlet Bahçeli has urged the restructuring of the Turkish Constitutional Court
  5. Colombian Prosecutor’s Office critics to the Supreme Court in the case of Álvaro Uribe
  6. In Chile, demand seeks to postpone the national plebiscite for COVID-19.

New Scholarship

  1. Ignacio Arana Araya  Melanie M. Hughes  Aníbal Pérez‐Liñán, Judicial Reshuffles and Women Justices in Latin America, (exploring institutional disruptions as a source of the appointment of women justices and the limitations to secure path to substantive progress in gender equality).
  2. Armin von Bogdandy, Jesús María Casal, Mariela Morales Antoniazzi, La resistencia del Estado democrático de Derecho en América Latina frente a la pandemia de COVID-19. Un enfoque desde el ius commune, (Examining how the ius constitutionale commune on states of emergency in Latin America, represents an essential constraint on emergency powers in times of COVID-19).
  3. Jaclyn Neo, A Contextual Approach to Unconstitutional Constitutional Amendments: Judicial Power and the Basic Structure Doctrine in Malaysia (adopting a contextual approach to analyzing judicial engagement with the doctrine of unconstitutional constitutional amendments, with Malaysia as a main case example).
  4. Aaron Tang, Harm-Avoider Constitutionalism, California Law Review, Forthcoming (examining the US Supreme Court use of harm-avoider constitutionalism defined as a criteria of constitutional interpretation in which the court is deferent to those who had easier options for avoiding the harms of a judicial defeat).
  5. Jadson Correia de Oliveira, Raíssa Fernanda Cardoso Toledo, and Natanael Lima Santos, Judicial supremacy and institutional dialogues in the Brazilian constitutional order, (criticizing how  the  judicial supremacy system in the constitutional hermeneutics it is not the most garantist for democracy and minorities in comparison to a system of shared  interpretative competence among  different institutions).
  6. Michel Rosenfeld, The Role of Justice in the Constitution: The Case for Social and Economic Rights in Comparative Perspective, Cardozo Law Review Forthcoming (analyzing the potential for the US judicial indirect vindication of social and economic rights through the Due Process and Equal Protection clause).
  7. Josh Blackman, What Rights are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic. Liberty & Law Center Research Paper No. 20-04, (examining how the courts have interpreted the First, Second, and Fourteenth Amendments during the time of pandemic).

Call for Papers and Announcements

  1. The International Association of Constitutional Law (IACL) , has announced the Global Roundtable’ Democracy 2020: Assessing Constitutional Decay, Breakdown, and Renewal Worldwide’, (October 8).
  2. The International Association of Constitutional Law (IACL) has issued a call for papers on “Roundtable of IACL – Constitutional Identity.” (Due January 11, 2021).
  3. The Externado University, Colombia, has issued a call for papers on a special edition of the Revista Derecho del Estado on the 30th anniversary of the Colombian Constitution. (January 31, 2021).
  4. The American Political Science Association, has announced the 2021 Call for Proposals for the 117th APSA on “Promoting Pluralism.” (Due January 14, 2021).
  5. The Center for the Study of Liberal Democracy at the University of Wisconsin-Madison invites submissions for its annual First Book Manuscript Workshop. (Due November 15)
  6. The Center for the Study of Liberal Democracy (CSLD) invites applications for a postdoctoral fellowship in political theory. (Due January 15, 2021).

Elsewhere Online

  1. Isabelle Somma de Castro, Securitisation cannot stop the COVID-19 trafficking boom at the Triple Frontier between Paraguay, Brazil, and Argentina, LSE blog
  2. Andrew Carico, John Marshall, Judicial Supremacy, and a Post-Ginsberg Court, Starting Points Journal
  3. Berihun Adugna Gebeye, Federalism Without Constitutionalism? IACL-IADC Blog.
  4. Bethany Shiner and Tanzil Chowdhury, Response to the Joint Committee of Human Rights call for evidence on the Overseas Operations (Service Personnel and Veterans) Bill, Queen Mary University of London.
  5. Gautam Bhatia, Executive Law-Making in Romania, Indian Constitutional Law and Philosophy.
  6. Renáta Uitz, Finally: The CJEU Defends Academic Freedom, Verfassungs blog
  7. David R. Cameron, European Council addresses Cyprus concerns with Turkey, agrees to sanctions on Belarus, MacMillan Center’s’ Program in European Union Studies at Yale.
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Published on October 12, 2020
Author:          Filed under: Developments
 

Losing the Battle to Win the War: Judicial Self-Empowerment Through Maxi-Minimalism

Yvonne Tew, Georgetown University Law Center[1]

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

On September 26, 2020, President Donald Trump announced Judge Amy Coney Barrett as his nominee to the United States Supreme Court to fill the seat occupied by Justice Ruth Bader Ginsburg until her death the week before.[2] The President’s nomination of a Supreme Court justicethe third of his presidency—thirty-eight days before the presidential election on November 3, set off a deeply divisive partisan battle over her confirmation. Democrats and Republicans have already begun to spar over Judge Barrett’s judicial philosophy and the confirmation process. Senate Majority Leader Mitch McConnell’s plan to move forward with the confirmation process this close to the presidential election has particularly incensed Democrats in light of the refusal of the Republican-controlled Senate in 2016 to allow a vote on President Barack Obama’s nominee, Judge Merrick Garland.[3] Republicans have vowed to push ahead with confirming Trump’s Supreme Court nominee, despite the recent White House coronavirus outbreak that infected the President and a number Republican senators.[4] But this battle over the Court is not simply about Judge Barrett; nor is it even just about the process of this particular confirmation. With Judge Barrett’s confirmation likely to cement a solid conservative majority on the Supreme Court, those on either side of the political divide are treating the stakes of this confirmation as no less than a fight for the soul of the United States Supreme Court for decades to come.[5]

All of this reflects a broader fact about the role of the Supreme Court in the American constitutional system. The United States Supreme Court today occupies a position of judicial supremacy. Writing half a century ago, Alexander Bickel declared that the least dangerous branch of the American government had become “the most extraordinarily powerful court the world has ever known.”[6] That wasn’t always the case. The Court has come a long way since Chief Justice Marshall sat at the helm of a fragile court, and, facing the real possibility of immediate attack if the court ruled against the newly elected President, strategically asserted the authority of judicial review in Marbury v. Madison.[7] One hundred and fifty years later, a unanimous Supreme Court would declare in Cooper v. Aaron that “the federal judiciary is supreme in the exposition of the law of the Constitution.”[8]

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Published on October 7, 2020
Author:          Filed under: Analysis
 

The Unfinished Job of Marbury v. Madison: Appointment of Judges during an Electoral Campaign Period


Antonios Kouroutakis, Assistant Professor, IE University, Madrid.


Introduction

Marbury v Madison[1] is a landmark decision of the US Supreme Court. In the words of Chief Justice Marshall the doctrine of Constitutional Supremacy was established and the power of the Courts to review and strike down acts of the legislative body, if and when ordinary legislation contradicts the constitution. That idea migrated all over the world, with the exception of constitutional orders such as the UK, and New Zealand,[2] and nowadays it is the norm rather than the exception. 

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Published on October 6, 2020
Author:          Filed under: Developments
 

Special Announcement: Welcome to IberICONect from the ICONnect Team!

Richard Albert, The University of Texas at Austin, Antonia Baraggia, University of Milan, Tom Ginsburg, University of Chicago, David Landau, Florida State University, and Jaclyn Neo, National University of Singapore

We are delighted to welcome the IberICONnect blog to the world. Like ICONnect, IberICONnect advances the missions of the International Journal of Constitutional Law (ICON) and the International Society of Public Law (ICON-S), in this case in an effort to reach the vast and expanding universe of Spanish-speaking readers in the field of public law.

The two blogs have separate editorial boards – IberICONnect has a wonderful team drawn from across Latin America and Southern Europe – but related, interlinked missions. We expect to publish independent content, but also to come together frequently for joint projects and cross-posting for the benefit of our readers.

Congratulations to the new editorial board of IberICONnect—Micaela Alterio, Maria Argelia Queralt Jiménez, and Jorge Ernesto Roa Roa—for launching this exciting new resource for Spanish-speaking scholars and practitioners in public law. Congratulations, too, to the Editors-in-Chief of ICON, Joseph Weiler and Gráinne de Búrca, for all of their efforts in making it possible for IberICONnect to come to life. We are excited to witness (and participate in) the growth and success of this wonderful project!

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Published on October 1, 2020
Author:          Filed under: Editorials
 

The Centennial of the Austrian Federal Constitution


Prof. Dr. Anna Gamper, Universität Innsbruck


Amidst the Corona crisis, constitutional jubilees may be expected to pass rather undetected. A centennial, however–which the Austrian Federal Constitution celebrates today–is a noteworthy event even in troubled times. It demonstrates the endurance of a constitution that did not only survive authoritarian and totalitarian regimes, but has so far also withstood the recent pandemic and other crises.

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Published on October 1, 2020
Author:          Filed under: Analysis
 

Compulsory Vaccination in Brazil: Anticipating the COVID-19 Vaccine Struggles

Bruno Santos Cunha, City Attorney, Recife, Brazil

In the last week of August 2020, the Brazilian Supreme Court had a peculiar case on its docket: the State of São Paulo was suing the parents of a 5 year-old child in order to compel them to regularize their child’s vaccination according to the mandatory vaccine calendar applicable to children nationwide. On this occasion – and following the Court procedures regarding its appellate jurisdiction in constitutional cases – the Supreme Court was only called upon to declare whether the case, as decided by the São Paulo Appellate Court, provided a clear constitutional challenge able to trigger Supreme Court jurisdiction. In a unanimous decision, the Brazilian Supreme Court said that it is within its constitutional scope to judge whether parents are compelled to follow mandatory vaccination schemes regardless of their ideological, religious, moral or existential beliefs. After accepting to judge the case on constitutional grounds (STF – ARE 1267879 – Tema 1103), the Court is now ready to schedule its judgment on the merits in the near future.

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Published on September 30, 2020
Author:          Filed under: Developments
 

Special Announcement | New Additions to the I-CONnect Team


Richard Albert, The University of Texas at Austin; Tom Ginsburg, The University of Chicago; David Landau, Florida State University


Next month, on October 12, I-CONnect turns eight years old. It has been quite a journey thus far. And we have evolved considerably in that time, both in our content and in our contributors.

But we have kept the editorial leadership unchanged since the very beginning. Until now.

Today we are thrilled to announce that Antonia Baraggia and Jaclyn Neo have joined us as co-editors here at I-CONnect. We encourage you to contact them with your ideas and suggestions, just as you would have earlier contacted any of the three of us. And please also congratulate them on their new roles in our global community of public law!

Antonia Baraggia is an Assistant Professor of Comparative Public Law at the University of Milan in the Department of Italian and Supranational Public Law. She serves as Chair of the Executive Board of the Younger Comparativists Committee (YCC) in the American Society of Comparative Law. She has been a Visiting Fellow at Fordham University, McGill University, and at the Max Planck Institute for the Study of Religious and Ethnic Diversity in Göttingen. The winner of competitive research grants and academic scholarships, her research focuses on global constitutional law, constitutionalism in times of crisis, socio-economic rights, and federalism in comparative perspective. She has authored three books and several publications in Italian and English.
Jaclyn Neo is an Associate Professor of Law at the National University of Singapore (NUS) and the Director of the NUS Centre for Asian Legal Studies. Her work aims to foreground Asian jurisdictions in comparative constitutional law. A graduate of NUS Faculty of Law and Yale Law School, Jaclyn is a recipient of multiple academic scholarships, competitive research grants, and research awards. She has published in leading journals in her field, edited/co-edited five books, and served as guest editor for multiple special issues. Her work has been cited by the courts in Singapore and India. She is an elected Council Member of ICON-S and founding co-chair of ICON-S (Singapore). Jaclyn served as an ICONnect blog columnist in 2018.

We take this occasion to announce that we have a new contact email for submissions, inquiries, and proposals: iconnecteditors@gmail.com. Communications sent to any other email address will not be received.

And we never miss an occasion to thank our readers for continuing to support this Blog. Thank you. It is your Blog, and we invite you to join us with your contributions and suggestions to help keep this Blog a central resource for the field of public law.

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Published on September 24, 2020
Author:          Filed under: Developments
 

The Constitutional Reform Referendum in Chile: Balancing Democracy and Elite Accommodation

Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity, and Rodolfo Disi Pavlic, Temuco Catholic University

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

Next month, citizens of Chile will go to the polls to decide whether or not to draft a new constitution, and on the form of the assembly that would draft that new constitution next year. The two options for the potential constitutional drafting body involve some tradeoffs between enhancing the democratic bona fides of the drafting body, and ensuring political elite buy-in. Specifically, one option would create a specially elected constituent assembly (following the rules of the normal legislative elections), while the other would mix its membership between current members of the legislature and citizen-participants elected for this specific purpose. Both Chile’s recent past experience with constitutional reform (the failed process of 2016-2018) and comparative examples suggest that some caution would be wise. We argue that successful constitution-making processes must find a delicate balance between empowering the people and ensuring that political elites will support the new constitution. In this respect, the failed constitution-making process in Iceland may be especially informative.

The background to the current constitution-making process is the wave of protests that swept over Chile from October 2019 to March 2020. The nominal triggering event was an increase in the cost of transit tickets in Santiago, but in reality the protests addressed concerns about increasingly apparent income inequality and other economic issues that had been rising in importance for many Chileans for some years. The constitution itself is a relic from the Pinochet dictatorship, and its supermajority requirements in certain areas have long been understood to present unreasonable impediments to policy making. The constitution is thus centrally implicated in the current political struggles[1] and the promise in November 2019 to consult the people about constitutional reform was an important step in placating some of the protesters’ concerns.[2] Certainly, a constitution cannot on its own resolve these deep economic problems. Yet the political commitments toward change could be given expression in a new constitution.

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Published on September 23, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


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

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

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

Developments in Constitutional Courts

  1. Supreme Court of Spain to decide whether to remove the regional president of Catalonia Quim Torra from office for breaching electoral law.
  2. Constitutional Court of Peru to rule about presidential vacancy on preliminary grounds next Thursday.
  3. UK Supreme Court to hear an appeal by Nigerian farmers and fishers to pursue claims in England against Shell over spills in the Niger Delta.
  4. The newly-elected Chief Justice of the Supreme Court of Brazil, Luiz Fux, published the cases to be ruled by the Court until the end of the year, including indigenous rights, gender education in public schools and royalties on oil exploration and production.
  5. The Supreme Court of India decided to halt further telecast of a TV show vilifying Muslim minorities

In the News

  1. US Supreme Court Justice Ruth Bader Ginsburg dies aged 87.
  2. Barbados plans to become a republic by November 2021.
  3. Minister of Justice Dawda Jallow presents the Draft Constitution of The Gambia to National Assembly.
  4. The advocate general for Scotland, Lord Keen, quits over Brexit bill row.
  5. Mexican President Andres Manuel Lopes Obrador asks the Senate for approval to place a national referendum to authorize prosecution of former presidents for crimes allegedly committed in office.
  6. Nigeria extends deadline for public proposals on constitutional change.

New Scholarship

  1. David Pozen and Kim Lane Scheppele, Executive Underreach, in Pandemics and Otherwise (2020) American Journal of International Law (forthcoming), Columbia Public Law Research Paper No. 14-664 (seeking to define the phenomenon of executive underreach, with special reference to the COVID-19 crisis, to outline ways in which it may compromise constitutional governance and the international legal order, and to suggest a partial remedy).
  2. Shauhin Talesh, Elizabeth Mertz and Heinz Klug, Modern Legal Realism: Paving the Way for Theoretically-Informed Empirical Research in the Legal Academy (forthcoming 2021), UC Irvine School of Law Research Paper No. 2020-56 (showing the distinctive qualities of New Legal Realism and describing where it stands around its fifteenth anniversary).
  3. Sergio Verdugo, How Can Judges Challenge Dictators and Get Away With It? (2020), Working paper (claiming that it is possible for courts, in specific high-stake scenarios, to preserve or promote democracy without facing political backlash).
  4. Pippa Norris, Closed Minds? Is a ‘Cancel Culture’ Stifling Academic Freedom and Intellectual Debate in Political Science? (2020), Harvard Kennedy School Working Paper No 20-025 (outlining propositions arising from the ‘cancel culture’ thesis and describing the sources of empirical survey evidence and measures used to test these claims within the discipline of political science).
  5. Jena McGill and Amy Salyzyn, Judging by Numbers: How Will Judicial Analytics Impact the Justice System and Its Stakeholders? (forthcoming 2021), 44:1, Dalhousie Law Journal, Ottawa Faculty of Law Working Paper No. 2020-13 (analyzing the potential benefits of mainstreamed judicial analytics is significantly increased transparency into the work of judging).
  6. Pietro Faraguna, Verbatim Identity (2020), Max Planck Encyclopedia of Comparative Constitutional Law (exploring the concept of identity from the perspective of comparative constitutional law and constitutional theory).

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism welcomes submission for “The Global Summit,” to be held on January 12-16, 2021. The first of its kind summit will be both multilingual and multi-time zone, and it offers an opportunity for scholars of all ranks around the world to exchange ideas on constitutionalism. The deadline to submit a proposal for a paper or a fully-formed panel is 8 pm on October 1, 2020.
  2. The Eurac Research Institute for Comparative Federalism invites applications for the Winter School on Federalism and Governance. Applications may be submitted by October 18, 2020.
  3. The International Forum on the Future of Constitutionalism invites all to register for the virtual roundtable on “The Living Presidency” on October 9, 2020. This roundtable will feature Sanford Levinson, Amanda Tyler and Richard Albert in conversation with Saikrishna Bangalore Prakash, author of “The Living Presidency: An Originalist Argument Against its Ever-Expanding Powers (2020, Harvard University Press).
  4. The Colombian Constitutional Court invites all to the “XII Conferencia Iberoamericana de Justicia Constitucional: Democracia y Derechos Fundamentales en los Estados de Excepción”, to be held online on September 24-25, 2020.
  5. The Center for Comparative and Public Law at the University of Hong Kong organizes the Zoom Webinar Book Talk – Constitutional Revolution (Yale University Press, 2020) with the authors, Gary Jeffrey Jacobsohn and Yaniv Roznai, on October 7, 2020.
  6. The Utrecht School of Law is seeking to appoint a PhD researcher in law for four years under the framework of the research platform ‘Empirical Research into Institutions for Conflict Resolution’ (ERI) and the Montaigne Center for Rule of Law and Administration of Justice. The deadline for applications is October 10, 2020.

Elsewhere Online

  1. Geoffrey Stone, The Most Important Woman Lawyer in the History of the Republic, Politico.
  2. Kenneth Armstrong, Can the UK breach the Withdrawal Agreement and get away with it? – The United Kingdom Internal Market Bill, UK Constitutional Law Association Blog.
  3. Adriano Dirri, Independence referendum was neither the best choice nor the solution to Kurdish issue in Iraq, Kurd Press.
  4. Mark Tushnet, The two sides to a Supreme Court nomination, Balkinization.
  5. Shama Abbasi, India: Sharma v. Sharma – Constitutional Equality for Hindu Women?, Oxford Human Rights Blog.
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Published on September 21, 2020
Author:          Filed under: Developments