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I·CONnect

Blog of the International Journal of Constitutional Law

Introduction: Symposium on Chile’s Constitution-Making Process

[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent Chilean referendum authorizing a new constitution-making process. The symposium was organized by Professors José Francisco García and Sergio Verdugo, who have written today’s introduction to the symposium.]

José Francisco García, P. Universidad Católica de Chile and Sergio Verdugo, Universidad del Desarrollo*

Last Sunday, 78.3% of Chilean voters decided to initiate a constitution-making process aimed at replacing the current Constitution—see the official electoral information clicking here. Also, 79% of the voters agreed that a wholly elected Constitutional Convention should enact the new constitution.

Although many provisions in the current text of the Chilean Constitution can be traced back to either older constitutional documents or the more than fifty amendments enacted during post-authoritarian times, Chile’s Constitution is mostly the result of a political process that was initiated when the Pinochet dictatorship drafted and imposed the 1980 Constitution. In 1980, the Constitution was approved in a plebiscite that lacked democratic credentials and that a scholar has described as a “fraud,” and its sin of origin has never been completely cleanse. Despite the major amendments of 1989 and 2005—the second of which was presented by former President Lagos as a “new Constitution”— and the reform to the electoral system in 2015, Chile’s Constitution divides Chileans and it still includes principles and institutions that can be associated with the legacy of the Pinochet regime—see, e.g., the work by Pablo Ruiz Tagle, among others. Scholars have suggested ways to replace the Constitution and some have even argued that Chile needs to recover its political tradition associated with the 1925 Constitution.

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Published on October 31, 2020
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Europe Must Learn Quickly to Speak the Language of Power: Part II

J.H.H. Weiler, NYU School of Law; co-Editor-in-Chief, International Journal of Constitutional Law

This is Part 2 of J.H.H. Weiler’s interview of Josep Borrell, High Representative for Foreign Affairs and Security Policy and Vice-President of the Commission of the European Union. Part 1 is available here.

JW: Let us turn to actual foreign policy and begin with what I consider the most significant event of our current epoch which is the ending of the 100 year long Pax Americana. Mr Trump has dramatically accentuated and exacerbated this change but it predates his Presidency. Make no mistake: The United States is still a formidable power, but in relative terms its dominance and ability to lead in economic, political and moral terms has significantly declined and is evident in its oft times impotence to shape geo politics in accordance  with its interests, the latter increasingly seeming to diverge from those we could group under the umbrella of multilateralist liberal democracies – not least Europe. And militarily, although a power second to none, its international commitments have been  questioned for some time by many.

  • Do you agree with my claim regarding the Pax Americana?
  • Is there a need to rethink the relationship Europe-USA? How do we solve the dilemma of we-can’t-do-without-them but we can’t-do-with-them?
  • Most importantly in this context,  in a world which is increasingly polarized not least on the USA-China axis, and increasingly confrontational and bellicose in the manner in which global problems are addressed, it begins to resemble, uncomfortably the Cold War (even if thankfully so far without the threat of Mutually Assured Destruction).
  • In the polarized world of the Cold War era one recalls the emergence of the Group of 77 – the non aligned countries. Do you think there is a role for Europe to play in leading a new Bloc of multilateralists in world politics?
  • Finally, how do you insert Russia into this equation?

JB: I do agree with your assessment regarding the Pax Americana, also because the US has chosen in the last years to increasingly retract from its global leadership role. For the first time in a global crisis, there has not been a US leadership role in facing the Covid-19 pandemic. The US disengagements from multilateral frameworks and agreements – for instance the withdrawal from the World Health Organization amid the coronavirus crisis, the sanctions against members of the International Criminal Court, and of course abandoning the JCPoA on Iran’s nuclear program and damaging global action against climate change by renouncing the Paris Agreement – are very regrettable for us Europeans. In a world facing unprecedented global challenges, a strong transatlantic alliance is ever more important and we would like to work closely with our American friends. There is no doubt about the European Union’s commitment to an effective transatlantic partnership, able to seek joint solutions, to advance shared interests and to strengthen the rules-based international order. But the relations are more difficult of course if, on the other side of the Atlantic, there is someone who believes that the European Union was created to damage the US, which I think is a completely wrong understanding, and takes decisions that affect us without taking into consideration European concerns and interests.

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Published on October 30, 2020
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Europe Must Learn Quickly to Speak the Language of Power: Part I

J.H.H. Weiler, NYU School of Law; co-editor-in-chief, ICON

Josep Borrell, High Representative for Foreign Affairs and Security Policy and Vice-President of the Commission of the European Union – the EU’s foreign affairs chief and effectively the ‘Minister of Foreign Affairs of the EU’ – completes in these days his first year in office. He granted this interview to Professor J.H.H Weiler, Co-Editor-in-Chief of the European Journal of International Law (EJIL) and the International Journal of Constitutional Law (ICON). 

Joseph Weiler: It is about a year now since you assumed the position of High Representative and Vice President of the Commission. I do not think that any of your predecessors when assuming this position faced even remotely a world scene and geo-political situation as challenging and even menacing as you did and have had to deal with since then. And although we are consumed by COVID related issues, most of these challenges predated COVID and will be with us long after the pandemic is over.

 Here are but a few examples:

  • A disruptive and unpredictable United States not only calling into question and putting under pressure some of the foundations of Atlanticism such as  NATO and Iran or dramatically disrupting the Multilateral Trading System (consider American action vis-à-vis the WTO Appellate Body and its internecine trade strife with both Europe and China) but quite openly and it seems willingly abdicating its self-understanding as leading the world of liberal democracies.
  • A Russia which increasingly evokes memories of the Cold War (consider the unresolved Ukraine/Crimea situation, cyber interference in ‘Western’ democratic processes etc)
  • The Middle East – which is the living proof of the Jewish saying – there is nothing so bad that cannot be worse
  • China in which internally authoritarianism seems on the increase and externally even the EU has begun to think of it as a strategic foe

And one could add Syria, Iran, Libya, Turkey – the list goes on and now, to top it all, COVID19 which has upended life as we have known it with a potential impact, social, economic and political, which is hard to gauge – but at a minimum will be very considerable and potentially catastrophic and which seems to overwhelm everything else.

Before we turn to some of these issues, could you tell us of your initial experiences and even feelings in the first months of assuming your new responsibilities. How different was it to your previous experiences as, say, Foreign Minister of Spain or President of the European Parliament? What was expected and what was unexpected?

Josep Borrell: You summarize very well the challenging global situation that we are facing and the numerous crises and tectonic changes that we have been facing in the last months and that are going on as we speak. Since I assumed my mandate in December 2019, there was indeed no time to breathe.

Just as an example: I left Madrid on my first day in office as HR/VP to attend in Paris the mourning ceremony for nine French soldiers killed in Mali. Now, one year later, the terrorists are controlling most of the territory and a military coup has been staged, toppling the government.

While I was obviously prepared for difficult times on many fronts, I did not expect to start my mandate with the killing of the Iranian General Qasem Suleimani in January, which brought us to a major confrontation between the US and Iran. Of course, I even less expected the outbreak of the COVID-19 pandemic, with all its consequences. Not only major health and economic consequences, but it also greatly aggravated the difficulties of many states that had already been weakened before, such as Libya and Lebanon, and increased the appetites and imperial temptations of authoritarian regimes such as those of China, Russia and Turkey.

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Published on October 29, 2020
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Election Anxiety: The Other Global Pandemic

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

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

On Monday, three days before Thursday’s televised encounter between U.S. presidential candidates Donald Trump and Joe Biden, the nonpartisan Commission on Presidential Debates announced a rule change to the debate: each candidate will have his microphone muted while his rival delivers his answers to the moderator’s questions.

It may sound like a trivial procedural detail, hardly the sort of thing to get citizens’ pulses racing. But after a previous debate panned across the world as the worst in history, in which President Trump repeatedly interrupted his opponent and talked over the moderator, the rule change betrays a growing fear among Americans that, as far as concerns the 2020 presidential election, the usual norms of fair play, decency, and transparency may not hold by themselves.

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Published on October 21, 2020
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What’s New in Public Law


Chiara Graziani, Research Fellow in Constitutional Law, University of Genoa (Italy) and Academic Fellow, Bocconi University (Italy)


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

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

Developments in Constitutional Courts

  1. The European Court of Justice ruled that EU law precludes national legislation requiring electronic communications providers to carry out the transmission or retention of traffic and location data in a general and indiscriminate way for the purpose of fighting crime or of safeguarding national security.
  2. The European Court of Justice held that right to an effective remedy requires that persons who hold information that is requested by the national administration, in the context of a cooperation procedure between Member States, must be able to bring a direct action against such a request.
  3. The Grand Chamber of the European Court of Human Rights held that the expulsion of aliens on national security grounds on the basis on classified information not disclosed to the applicant violates Protocol No. 7 to the European Convention on Human Rights.
  4. The US Supreme Court agreed to hear a case on whether administrative patent judges are principal officers of the United States who must be appointed by the President and confirmed by the Senate.
  5. The Turkish Constitutional Court decided that the review of employee emails and their use as grounds for termination violates the rights of privacy and freedom of communication of the applicant.
  6. The Constitutional Court of Slovakia upheld the declaration of a state of emergency due to the Covid-19 crisis.

In the News

  1. Advocate General Kokott advised the European Court of Justice that the Polish tax on the retail sector and the Hungarian advertisement tax do not infringe EU State aid rules.
  2. The US Senate Judiciary Committee heard arguments supporting and opposing the confirmation of Supreme Court nominee Amy Coney Barrett.
  3. The EU Commission adopted a new “Digital Finance Package”.
  4. The UK government is going to fast-track new Brexit related legislation, providing that vulnerable citizens already lawfully living in the country will be able to apply for settled status years after the 30 June 2021 deadline.
  5. The French President, Emmanuel Macron, announced a new law against “religious separatism” in France.

New Scholarship

  1. Ágúst Þór Árnason, Catherine Dupré (eds.), Icelandic Constitutional Reform (Routledge, forthcoming 2021) (providing the first comprehensive analysis of Icelandic constitutional reform)
  2. Adam Chilton and Mila Versteeg, How Constitutional Rights Matter (Oxford University Press, 2020) (documenting constitutional rights enforcement globally through statistical analyses, surveys, and case studies)
  3. Elena Griglio, Parliamentary Oversight of the Executives (Hart Publishing, 2020) (arguing that, although oversight of executives has always been a key function of parliaments and central to developing the relationship between the executive and legislative branches of government, in reality governments are taking a more pronounced role in controlling legislation)
  4. Dorota Mokrosinska (ed.), Transparency and Secrecy in European Democracies. Contested Trade-offs (Routledge, forthcoming 2020) (offering a critical discussion of the trade-offs between transparency and secrecy in the actual political practice of democratic states in Europe)
  5. Bui Ngoc Son, You, the People: Cuba’s International Constitution, NYU Journal of International Law and Politics (2020) (exploring how Cuba’s 2019 Constitution deals with issues of international law)
  6. Andras L. Pap, Neglect, Marginalization, and Abuse: Hate Crime Legislation and Practice in the Labyrinth of Identity Politics, Minority Protection, and Penal Populism, Nationalities Papers (2020) (shows the various ways legal policy can become misguided in the labyrinth of identity politics, minority protection, and penal populism)
  7. Christopher Thornhill, Democratic Crisis and Global Constitutional Law (Cambridge University Press, forthcoming 2021) (explaining the current weakness of democratic polities by examining antinomies in constitutional democracy and its theoretical foundations)
  8. Jure Vidmar (ed.), European Populism and Human Rights (Brill, 2020) (focusing on the recent challenge posed by right-wing populism to democratic consolidation in Europe and exploring the legal dimensions of this challenge)

Calls for Papers and Announcements

  1. The Human Rights Law Centre at Nottingham University will hold the webinar “After the First Wave? Initial Conclusions on Human Rights Impacts of C19” on October 19, 2020.
  2. The 3rd Bernhardt Lecture titled “‘To me, fair friend, you can never be old’: The European Convention on Human Rights at 70” will be held (in hybrid format) at the Max Planck Institute for Comparative Public Law and International Law.
  3. The Department of Government at the University of Texas at Austin invites submissions for the seventh annual Graduate Conference in Public Law, to be held on March 26, 2021. Abstract must be submitted no later than December 15, 2020.
  4. The Italian Association of Comparative Law (AIDC) issued an international Call for Papers on “Comparative law in times of emergencies”. The deadline for submitting abstracts is January 7, 2021.
  5. The International Association of Constitutional Law convened a roundtable in St. Petersbug, Russia, on June 10-13, 2021. Applicants are required to submit their CV and abstracts in English no longer than 500 words by January 11, 2021.

Elsewhere Online

  1. Helmut Philipp Aust and Prisca Feihle, “I want to break free”: the WHO Foundation as an Experiment in the Financing of International Organisations, EJIL: Talk!
  2. John Bell, The Commission’s argument for breach of good faith against the United Kingdom: an in-depth analysis from the standpoint of public international law, European Law Blog
  3. Ronan Cormacain, Legislative Competence in Northern Ireland and the Independent Review of Administrative Law, UK Constitutional Law Blog
  4. Anna Gamper, Symposium: Constitutional Courts and their Powers – the Least Dangerous Branch?, IACL-AIDC Blog
  5. Tamar Hostovsky Brandes, An Emergency within an Emergency within an Emergency. Israel’s “Special Emergency Coronavirus Situation” and Freedom of Assembly, Verfassungsblog
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Published on October 19, 2020
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Freedom at Stake in Brazil: An Illiberal Project Unfolds Under Bolsonaro’s Regime

Special Series: Perspectives from Undergraduate Law Students

–Pedro Abrantes Martins, Bachelor’s degree candidate, Federal University of Paraná (UFPR), Brazil; Research Fellow, Brazilian National Council for Scientific and Technological Development; member of the research group “Abusive Constitutionalism and Democratic Erosion,” UFPR

Freedom is at stake in Brazil. In 2020 alone, the government and its enthusiasts launched attacks on journalists, comedians, and autonomous institutions. Officials issued orders enforcing censorship, affecting government agencies and compromising individual rights. Either by informal (such as verbal and physical attacks on media individuals) or formal means (by enacting new legal measures), Jair Bolsonaro and his allies are slowly hindering liberties in the country. The actions deployed by Bolsonaro may appear only mildly problematic when analyzed in isolation, but they represent a greater danger when analyzed – properly – together. The latest developments should be perceived as part of a bigger phenomenon: worldwide democratic erosion.

Eroding from the Inside: Compromising Institutions

In July 2020, the Brazilian Special Secretariat for Social Communication (Secom) paid several YouTube channels (including channels with content for children and accounts accused of spreading fake news) to display propaganda in favor of the new social security reform.

Not long after that, a national comedian posted a parody on the aforementioned advertisement and was bashed by Secom’s official Twitter account and the current top culture official, Mário Frias, who called the comedian a “filthy creature”. Shortly after, Flávio Serafini, a Brazilian congressman, criticized Frias, who, in a menacing tone, told the lawmaker to watch out for the Federal Police. The whole situation was widely condemned by other lawmakers and civilians.

In a more recent attack, on September 4, the secretary of Culture, Mario Frias, signed a circular letter that was issued to autonomous governmental institutions, determining that appointments, dismissals, transfers, publication of notices and posts on websites and social networks of all bodies linked to the Special Secretariat for Culture must be previously sent to and approved by the institution.

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Published on October 18, 2020
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ICON Editorial – A Modest Proposal on Zoom Teaching

J.H.H. Weiler, NYU School of Law; Co-Editor-in-Chief, International Journal of Constitutional Law (ICON)

No preliminaries are necessary here. One result of Covid-19 has been a shift to online teaching by Zoom (or similar platforms). In some law faculties all teaching is online. In most faculties most teaching is online with some hybrid teaching, and in a few (privileged) places in-person teaching remains viable.

It is also a commonplace that most teachers find Zoom teaching inferior to in-person teaching, both from a didactic and a human point of view. The two are oftentimes intertwined.

And yet the impact of Zoom teaching will differ according to one’s style of teaching, and will affect some styles more than others. The challenge in each case, though, is to narrow the quality gap between in-person teaching and Zoom teaching, regardless of the style of teaching adopted.

At one end of the scale are those whose teaching is principally a lecture (with some time for questions at the end perhaps). At the other end are those, like myself, whose teaching, even in large classes, is principally through question and answer – the so-called Socratic method (though I am not sure what Socrates would think of this use of his name and method). Though the class is conducted through Q&A it is, as I tell my students, simply lecturing through their mouths, which has various benefits with which I need not trouble the reader here. I certainly do not want to argue for or against these different poles and the variants in between. Each has its pros and cons.

Grant me, however, that the gap between in-person and Zoom teaching is the narrowest the closer one’s style of teaching is to the formal lecture. In fact, there are several faculties where the online teaching, or significant parts of it, at least in larger classes, is by recorded lectures.

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Published on October 13, 2020
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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
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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
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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