ICON Volume 23, Issue 2: Table of Contents

Antoni Abat Ninet, Assessing the filters to tame the populist fierce. Review of Giuseppe Martinico. Filtering Populist Claims to Fight Populism: The Italian Case in a Comparative Perspective

Giuseppe Martinico, “It wasn’t me”: Why context matters in comparative constitutional studies on populisms—A reply

Roberto Gargarella, Responsive judicial review and democracy. Examining Rosalind Dixon’s theory of judicial review. Review of Rosalind Dixon. Responsive Judicial Review: Democracy and Dysfunction in the Modern Age

Hui-Chieh Su, Taking the constitutional significance of social media seriously. Review of Edoardo Celeste, Amélie Heldt, and Clara Iglesias Keller eds. Constitutionalising Social Media;and Lee C. Bollinger and Geoffrey R. Stone. Social Media, Freedom of Speech, and the Future of our Democracy

Rosalind Dixon, Constitutional democracy as fixed point? On interpretation and judicial representation-reinforcement. Review of Cass Sunstein. How to Interpret the Constitution

Book Review

Claire Charters, Review of Matthew S.R. Palmer & Dean R. Knight. The Constitution of New Zealand: A Contextual Analysis

ABSTRACTS

Victoria Melkisedeck Lihiru, The absurdity of constitutional safeguards for women’s representation in Eswatini’s House of Assembly

Using doctrinal legal analysis and empirical research methods, this article examines why the safeguards in Eswatini’s 2005 Constitution have not succeeded in improving women’s representation in the House of Assembly. Despite constitutional provisions allowing women to contest constituencies, mandating the King to select five women among the ten discretionary appointees, and providing four compensatory seats if the 30% target is unmet, women’s representation in the House of Assembly remains low. After the 2023 elections, only 21.6% of the House of Assembly members were women, compared to 46% in the Senate. The tinkhundla system has failed to meet the minimal 30% threshold. The compensatory four seats have not closed the gender gap, and a lack of political will continues to hinder progress. This article proposes amending Section 95(1)(a) of the Constitution to implement a mechanism that would facilitate the realization of equal representation of men and women in the sixty-member House of Assembly, in alignment with the aspirations of Sections 60(4) and 84(2) of the Constitution, as well as Eswatini’s international and regional commitments. These safeguards should be supported by a commitment to uphold the Constitution, the rule of law, and initiatives aimed at shifting societal perceptions of women’s roles in public life.

Conor O’Mahony, Why children should have constitutional rights of their own

Although children’s rights have in recent years moved from the fringes to the mainstream in international law, there is not yet a consensus on how children’s rights should be treated at the level of national constitutional law. Most countries have general constitutional provisions that apply to adults and children alike, and the right to education features in a majority of national constitutions. But more detailed and dedicated provisions on children’s rights are less common, and there is much variation in how detailed those provisions are, and in how strongly they protect children’s rights. This article argues that any national constitution that makes provision for constitutional rights that are enforceable through judicial review should include among those rights a dedicated provision that protects children’s rights. The inclusion of such provisions serves to legitimize children’s rights by placing them on a similar level to other rights; it elevates children’s rights to the highest point of the legal system, so that they enjoy entrenchment and supremacy over laws or policies conflicting with them; and it counter-balances other constitutionally recognized rights or interests that might be asserted in a manner that would undermine children’s rights. Objections to dedicated constitutional rights for children (including objections to constitutional rights per se; to children’s rights per se; and to “special rights” for children) are examined and rejected as unpersuasive.

Violeta Beširević, De-recognition of seceding territories: What precedes it in constitutional discourse and what follows in international politics

The de-recognition of states and the related practice of the parent state’s de-recognition campaign after unilateral secession, highly undertheorized topics in all relevant disciplines, have been particularly ignored in constitutional law. Since the first topic does not involve constitutional controversy, the apathy of constitutional scholarship is logical. Still, the silence in constitutional law about the parent state’s de-recognition campaign, a type of counter-secession tool, is not because secession is a topic frequently debated in constitutional law. After briefly touring the de-recognition of state cases and summarizing definitional and differentiation issues, this article fills the gap in constitutional theory by explaining (i) how the parent state’s de-recognition campaign fits within the framework of government, (ii) why an essential causal link exists between the parent state’s de-recognition campaign and the constitutional concepts of ‘demarcation’ sovereignty and territorial integrity, (iii) why territorial rights, the concept borrowed from political philosophy, offer no defense to the parent state’s strategy aimed at reducing the number of states that have recognized a contested state, and (iv) why waging the de-recognition campaign have a remedial effect in constitutional and international law despite potential challenges that might arise from geopolitical interests or populist abuse.

Max Steuer and James Organ, Reductionism and holism in European Union “value talk”: The case of the Conference on the Future of Europe

“Value talk” is gaining increasing traction in European Union politics and law, and is integral to the EU treaty change process. This article examines how EU values are invoked and deliberated by various stakeholders in EU politics, the challenges present in “value talk,” and the implications for their interpretation in EU law and constitutionalism more broadly. We use the European Citizens’ Panel on EU Democracy/Values, Rights, Rule of Law, Security (ECP), held during the Conference on the Future of Europe, as a case study. Utilizing ethnographic methods (via first-hand observations from the ECP) and the official public documents presenting the partial results of the ECP, the analysis of “value talk” explores two competing approaches: (i) value reductionism, which treats values in relative isolation from one another, and (ii) value holism, which considers values as mutually constitutive and requiring a comprehensive discussion of the broader value system. Following the conceptualization of these approaches and an introductory discussion of their implications for constitutionalism, we analyze the approach adopted in the ECP. We find that the design of the deliberations tended to favor a reductionist approach, but participating citizens leaned toward a holistic one. We conclude by exploring the reasons for the prevalence of the reductionist approach and argue that greater value holism is an important next step in the evolution, clarification, and strengthening of (EU) values and their role in constitutionalism. It is also essential for the EU to move beyond its technocratic past and develop greater democratic legitimacy.

George Katrougalos, Democracy and constitutionalism in the Arab world

This article responds to Philipp Dann’s Editorial on the absence of a counterpart to third world approaches to international law (TWAIL) in comparative constitutional law. It argues for a shift away from prevailing frameworks that universalize liberal constitutionalism, advocating instead for a “connected constitutionalism” approach. Drawing inspiration from the methodology of “connected history,” this perspective emphasizes the interdependence between North and South and foregrounds the power relations that shape constitutional developments across regions. The article illustrates this approach through a focus on the Arab world, analyzing the role of Islam and the influence of both domestic and international actors in the formation of constitutional institutions. Challenging persistent Huntingtonian assumptions about the incompatibility of Islam with democracy, the article critiques two dominant narratives: the orientalist view that democracy is inherently Western, and the functionalist expectation that Arab democracies must evolve into Western clones. It argues that Arab constitutionalism’s non-secular character is not inherently anti-democratic, and that Islam can coexist with democratic governance. The article supports this claim through both normative analysis and empirical data on public perceptions of democracy in the region. Finally, it considers the shifting geopolitical landscape and its implications for democratic futures in the Arab world.

Barbara Havelková, Mathias Möschel, and Anna Śledzińska-Simon, Women, gender, and constitutionalism in Central and Eastern Europe: Introduction to the symposium

This introduction aims to explain the main findings of the contributions to this Symposium regarding women, gender, and constitutionalism in Central and Eastern Europe (CEE). The main conclusion is that that the region is not homogeneous, despite some commonalities (partly related to a common socialist tradition). While the cultural gender clashes have played out in varying ways and areas in different countries, LGBT+ rights seem to be more controversial than gender equality understood as equality between women and men. We also observe that the rise of illiberalism and populism saw an upsurge in the use of direct democracy, through referenda (especially on marriage equality), while courts have been engaged by both progressive and regressive actors, with varying results across the region. In this introduction, we first present and embed the project. We then address what constitutional contestations in the region tell us about its gender order. The final part analyzes the trajectories and outcomes of constitutionalization of gender issues in the region.

Ana Horvat Vuković and Ana Samobor, Constitutional construction of reproductive rights and family in Croatia and Slovenia

This article traces changes in Croatian and Slovenian gender dynamics over the past three decades, focusing on key constitutional developments in the areas of reproductive rights and the legal definitions of marriage and parenthood. From the re-traditionalization that followed the breakup of Yugoslavia in 1990, through an EU-influenced equality paradigm, to the rise of anti-gender movements, the two countries have followed similar—though not always synchronous—trajectories, despite their uncoordinated constitutional developments. While the 1990s brought robust re-traditionalization amid war and the growing influence of the Catholic Church, both countries retained the right to abortion established in 1974. In the second period (1998–2013), legal reforms driven by EU accession processes led to the recognition of same-sex partnerships. In the third period (2013–present), marked by disillusionment with the EU and a continent-wide recession, anti-gender public discourse gained traction. It drew on populist rhetoric and championed “national values,” while simultaneously invoking foundational EU principles. Popularly initiated referenda became the weapon of choice against gender equality, prompting divergent responses from the countries’ constitutional courts. Slovenia adopted a stance of judicial self-restraint, setting unrealistically high procedural thresholds for banning referenda and further narrowing avenues for constitutional challenge, but later reemerged as a progressive force with its landmark 2022 decisions on marriage equality and joint adoption. In contrast, Croatia’s highest courts consistently sought to mitigate the effects of anti-gender mobilization, entrenching the right to abortion in 2017 and recognizing a fundamental right to equal parenthood through fostering and adoption in 2020–22.

Barbara Havelková, Terezie Boková, and Lucia Berdisová, The non-constitutionalization and avoidant constitutionalization of gender in Czechia and Slovakia

Has constitutional law provided a meaningful space for contestations of patriarchy in Czechia and Slovakia? Only to a limited extent. Both the Czech and the Slovak Constitutional Courts are not unerringly able to recognize, understand, critically reflect on, and appropriately respond to gender-based injustices, nor are they particularly willing to adjudicate on difficult and socially and politically controversial gender questions. The Courts use two techniques to avoid full decisions on merit: “non-constitutionalization”—notably through limitations on standing (in Slovakia)—and “avoidant constitutionalization”—through dismissal of cases as “manifestly unfounded,” choice of ratio, in some cases outsized deference to the legislature (in Czechia), and an institutionally pragmatic “middle-ground” decision-making (in Slovakia).

Lídia Balogh and Tímea Drinózci, Women, sexual orientation, gender identity, and constitutional developments in Hungary

In this article, we aim to offer a nuanced understanding of how different Hungarian constitutions have shaped the gender order, and what contextual variables have influenced this process. Drawing on an understanding of the state-socialist past and the dynamics between constitutional reforms and the jurisprudence of the Hungarian Constitutional Court—operating under both liberal and illiberal constitutions—we set forth the following arguments. Even though one might assume that the decline of the rule of law, the deterioration of democracy and human rights protection, and judicial capture facilitated by major constitutional changes would also cause a shift in the gender-related constitutional architecture and the jurisprudence of constitutional courts, an analysis of the Hungarian constitutions and the case law of the Hungarian Constitutional Court shows that this is not necessarily the case. The liberal Hungarian constitution (1989–2011), due to the lack of related definitions, did not shape the content of gender-related concepts; at the same time, both the Parliament and the Constitutional Court tended to take a traditionalist position. The adoption and successive amendments of the illiberal constitution (since 2012), which introduced increasing numbers of provisions related to gender issues that affirm earlier traditional views and direct the jurisprudence of the Hungarian Constitutional Court, have not facilitated equality between the sexes. It nonetheless serves as a preemptive barrier to claims by sexual minorities. The Hungarian Constitutional Court, under both liberal democratic and illiberal governments, has consistently followed a traditionalist position, with relatively little deterioration of its already established case law, which has been unreceptive to the new generation of gender-related concepts. To support these claims, we discuss constitutional developments in the areas of equality between women and men, abortion, private-life relationships, the concept of marriage and family, and self-identified gender.

Elena Brodeală, Gender roles and the family under Romania’s post-socialist constitution: Between progress and restraint

This article contributes to understanding the status of gender equality in Eastern European constitutions and societies. It focuses on Romania, revealing both progress and conservative setbacks. Specifically, the article provides a case study on the construction and evolution of gender roles within the family under the post-socialist Romanian Constitution. It shows that, although state socialism aimed to promote gender equality, it left gender roles within the family largely untouched. These roles began to be more fundamentally challenged—at least under the law—only after the fall of the regime. The Constitutional Court of Romania played an important role in this process through its interpretation of the Constitution, acknowledging early on the socially constructed nature of gender roles and their impact on gender (in)equality within the family and beyond. An exception to this general trend appears in the Court’s recent case law on same-sex marriage. While the Court has generally shown openness to promoting equality between men and women, it has rather displayed restraint when issues of sexual orientation are involved. In this context, the article suggests that the recent conservative turn in Romanian constitutional jurisprudence on gender equality may be driven more by reticence to LGBT+ and intersectional equality than by concerns about equality between men and women per se.

Anna Śledzińska-Simon, Abortion and abuses of constitutional review in the trajectory of Polish constitutionalism

This article examines access to abortion as a case study for assessing the constitutional status of women’s rights in Poland. It aims to explore various forms of constitutional abuses, including ultra vires actions, interpretive dishonesty, and abusive constitutional change, all of which have occurred since the country’s democratic transition. The article outlines four distinct phases of Polish constitutionalism: the transitional period, the liberal era, the illiberal shift, and the hybrid phase. It then analyzes significant changes in abortion law, primarily shaped by rulings of the Constitutional Tribunal. The article critically evaluates these decisions as judicial overreach, arguing that they not only contradict the text of the Constitution and the intentions of its framers but also defy the will of the current parliamentary majority and the prevailing social consensus. In conclusion, the article contends that illiberal constitutionalism, often viewed as an aberration, is in fact deeply embedded in a long-standing, previously overlooked pattern of abusive constitutional review, which has been used to instrumentalize the Constitution and deny the protection for women’s rights.

Giuseppe Martinico, “It wasn’t me”: Why context matters in comparative constitutional studies on populisms—A reply

This reply engages with Antoni Abat i Ninet’s review of Giuseppe Martinico’s Filtering Populist Claims to Fight Populism: The Italian Case in a Comparative Perspective. I am grateful for the thoughtful critique, which provides an opportunity to clarify the scope and methodological choices underlying my work. The book does not claim to offer a universal theory of the relationship between populism and constitutionalism. Rather, it focuses on the specific historical trajectory of post-World War II European constitutionalism, particularly the “thick” version that emphasizes countermajoritarianism through devices like entrenchment clauses and strong judicial review. Ultimately, this reply seeks to situate the book as a legal contribution to a debate too often monopolized by political theory and sociology.

This review essay critically examines Rosalind Dixon’s Responsive Judicial Review, with particular attention to the book’s framing of the main challenges facing our constitutional democracies. It questions Dixon’s definition and use of the concept of democracy and raises concerns about an undue overlap between problems that are specific to constitutionalism and those specific to democracy.

This essay examines two edited volumes that address the global debate over government regulation of social media platforms, highlighting the contrasting approaches developed within European and American legal traditions. Both works recognize the profound impact of social media on information dissemination, communication rules, and power dynamics, which pose serious challenges for the governance of online speech. Constitutionalising Social Media (by European scholars) advances a comprehensive theory of how platforms should comply with constitutional principles, proposing frameworks for user rights protection and government–platform co-regulation, supported by comparative case studies. By contrast, Social Media, Freedom of Speech and the Future of our Democracy focuses on US free speech controversies, interrogating the constraints imposed by First Amendment jurisprudence and section 230 of the Communications Decency Act—both of which entrench the power of private platforms. The divergence in themes and arguments between the two volumes underscores deeper structural differences between American and European understandings of fundamental rights and regulatory authority. Within the European legal order, states possess the capacity to impose obligations on digital platforms to safeguard users’ rights, thereby enabling normative debates on digital constitutionalism and models of co‑regulation. In the United States, by contrast, the transplantation of analogous reforms is constrained by foundational legal doctrines—notably the state action doctrine, constitutional protections of press freedom, and the immunities conferred by section 230—which collectively restrict the permissible scope of regulatory intervention. Although neither volume engages directly with the EU Digital Services Act or Artificial Intelligence Act, both offer valuable conceptual insights for evaluating the broader regulatory frameworks within which these instruments are situated.

Rosalind Dixon, Constitutional democracy as fixed point? On interpretation and judicial representation-reinforcement. Review of Cass Sunstein. How to Interpret the Constitution

In How to Interpret the Constitution, Cass Sunstein argues that judges inevitably face a choice between different approaches to constitutional interpretation. Given this choice, Sunstein argues, judges should choose to adopt an approach to interpretation that makes a “constitutional order better rather than worse,” providing this approach is consistent with existing “fixed points” within a constitutional system. This essay explores these ideas, and their relevance to US and comparative debates over constitutional interpretation. In addition, it explores what it would take under this approach to endorse a form of representation reinforcing approach to judicial review. One potential requirement, the essay suggests, is that judges recognize core fixed points implicit in the existing democratic structure, and as yet unrealized in jurisprudence, not just those points already explicit in constitutional caselaw.

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