"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Sunday, September 18, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

The Jurisprudence of Dignity

Leslie Meltzer Henry
University of Pennsylvania Law Review, Vol. 160, 2011
U of Maryland Legal Studies Research Paper No. 2011-42

Few words play a more central role in modern constitutional law without appearing in the Constitution than dignity. The term appears in nearly one thousand Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed, but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.

This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity, and then proposing a typology of dignity based on a Wittgensteinian analysis of those opinions. The dataset reveals three important findings. First, the Court’s reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in contrast to its past use, the more conservative Justices on the Court are now as likely to invoke dignity as their more liberal counterparts. Finally, the dataset demonstrates that dignity is not one concept, as other scholars have theorized, but rather that dignity admits of five related conceptions.

The typology refers to these conceptions of dignity as: institutional status as dignity, liberty as dignity, equality as dignity, personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court’s use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, which arise from shifting conceptions of dignity.

The Constitutional Infiltration of Public and Private Workplace Privacy Law

Paul M. Secunda
University of Wisconsin Law School; Marquette University - Law School


One of the more pressing questions in this age of workplace technological innovation concerns how much privacy employees should have in physical and electronic locations in the workplace. An important related question is whether public sector and private sector employees, who have different legal status under the federal constitution’s state action doctrine, should enjoy the same level of workplace privacy rights. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it conducted an audit of text messages on an officer’s city-issued pager.

In a cryptic decision, Justice Kennedy held for a unanimous court that assuming, without deciding, the employee had a reasonable expectation of privacy in the pager, the city's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated in O’Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in that same case, it was reasonable because it would be considered “reasonable and normal” in the private sector workplace. To varying degrees, both of these analyses suggest that workplace privacy in the public and private sectors should be treated the same.

Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. In this manner, the Court has employed constitutional concepts counter-intuitively to decrease the level of privacy protections for public sector workers. Maintaining that public sector workers are entitled to greater levels of privacy protections based on the text of the constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this article argues for a two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively he Fourth Amendment’s warrant requirement to those searches undertaken for investigatory purposes.

Witchcraft and the Constitution

Nelson Tebbe

Witchcraft beliefs and related practices are complex social phenomena that present difficult challenges for South African lawmakers who are bound by their constitution and committed to upholding its values. In this chapter of an edited volume from the University of Cape Town Press, the author focus on certain constitutional questions raised by existing policies and current proposals. In some respects, the constitutional issues are easier than might be supposed. For example, Parliament may punish violence against suspected witches, even with laws that specifically address religiously motivated murder and assault. Also, citizens may believe that occult forces exist, and that those forces are being manipulated by jealous or malevolent neighbours. More constitutionally problematic are calls for educational campaigns that would "demystify" witchcraft beliefs, or proposals for laws that would prohibit certain rituals related to witch naming. Regardless of the resolutions, these sorts of constitutional issues deserve a place in the public debate.

A Universalist History of the 1987 Philippine Constitution (I)'

Diane Alferez Desierto
Historia Constitucional/Electronic Journal of Constitucional History, Vol. 10, pp. 383-444, 2009

This paper traces universalism - the vision of international public order built upon rights and values shared by all individuals and peoples - as a purposely-embedded ideology in the history and evolution of the Philippine Constitution. As the postcolonial and post-dictatorship founding document of the post-modern Philippine polity, the paper contends that 1987 Philippine Constitution enshrines nearly a century of constitutional text and practice which has led towards the present institutionalization of universalist rights-democratic theory in the Philippines’ constitutional interpretive canon.

Quintessential Elements of Meaningful Constitutions in Post-Conflict States

William W. Van Alstyne
William & Mary Law Review, Vol. 49, p.1497, 2008
William & Mary Law School Research Paper No. 09-115

This examination compares several successful constitutions formulated to govern countries just formed from the conclusion of armed conflicts (including the U.S.). Some of the most important elements gleaned from these successful constitutions include an independent court before which one may appeal to the new constitution because such a constitution adequately secures the integrity of the court itself.

The Japanese Constitution as Law and the Legitimacy of the Supreme Court's Constitutional Decisions: A Response to Matsui

Craig Martin
Washington University Law Review, Vol. 88, No. 6, 2011

This article, from a conference at the Washington University School of Law on the Supreme Court of Japan, responds to an article by Shigenori Matsui, “Why is the Japanese Supreme Court is so conservative?” Professor Matsui’s article makes the argument that a significant factor is the extent to which the judges fail to view the Constitution as positive law requiring judicial enforcement. It is novel in its emphasis on an explanation grounded in law, and the decision-making process, rather than the political, institutional, and cultural explanations that are so often offered.

In this article, the author, suggest that rather than framing the question in terms of the Court’s “conservatism”, Matsui’s argument would be that much more powerful by asking whether the Court’s constitutional decision-making is “legitimate”. The article explores why the term “conservative” can have various different meanings and is ultimately not a very useful basis for evaluating a court. It examines how the concept of legitimacy might be more meaningful, and explores how such legitimacy might be analyzed under various approaches to constitutional interpretation and theories of judicial review. The article employs two very different but well established analytical models, from the proportionality principle approach and from process theory, to analyze the 2006 Tokyo Metropolitan Government case for the purposes of illustrating how the court’s reasoning might be assessed for legitimacy. The exercise demonstrates that the judgment would not meet the legitimacy requirements under either approach, and indeed the reasons provide some compelling evidence to support Matsui’s central claim.

The point is not, of course, that all of the Court’s constitutional jurisprudence is illegitimate, but that a systematic examination of the Court’s decisions from this perspective could provide powerful evidence in support of Matsui’s argument that many of the judges do not view the Constitution as positive law requiring judicial enforcement. Given that Matsui’s argument focuses on the operation of the Court as a legal institution, rather than as a political entity engaged in competition with the other branches of government, reframing the inquiry to examine the legitimacy of the decision-making process of judges would enhance the normative power of his claims.

What Sortition Can and Cannot Do

Keith Sutherland
University of Exeter, Department of Politics

In recent years a number of writers have argued that sortition (the random selection of citizens for public office by lot) should augment the institutions of electoral democracy, but there is little agreement on the precise role that it should play. At one end of the spectrum James Fishkin (Fishkin, 2009) has argued that sortive bodies should be limited to an advisory or educative role; whereas radical democrats have argued that sortive bodies can do anything an elected chamber currently does (Callenbach & Phillips, 2008; O'Leary, 2006). In this paper the author argue that sortition could only serve an aggregative judgment role and could therefore only ever be one element in a mixed constitution. Any attempt to extend its use beyond this aggregate judgment function undermines any claim that sortition may have to democratic legitimacy. My case is based on fundamental conceptual distinctions derived from (Griffiths & Wollheim, 1960; Pitkin, 1967). The paper concludes with a brief discussion of two additional supposed functions of sortition: the ‘sanitization’ of the political process from corruption and partisanship, and the ‘epistemic’ benefits of a diverse decision-making base.

At the Origins of Constitutional Review: Sieyès’ Constitutional Jury and the Taming of Constituent Power

Marco Goldoni
University of Antwerp - Centre for Law and Cosmopolitan Values

This paper reconstructs the main tenets of Sieyès proposal, puts them in the larger context of his constitutional theory, and then assesses its institutional nature and its constitutional functions. The end result is mixed: as an organ, the constitutional jury is a hybrid institution, neither a third chamber nor a full-fledged constitutional court; its functions, on the other side, concern not only the control of constitutionality, but also the taming of constituent power. By cumulating several functions in one institution, Sieyès hoped to solve both the problem of the tension between constituent power and constitutional form and the issue of how to secure a balanced organization of powers.

Constitutional Review of EU Law after Honeywell: Contextualizing the Relationship between the German Constitutional Court and the EU Court of Justice

Mehrdad Payandeh
Common Market Law Review, Vol. 48, No. 1, 2011


The relationship between the German Constitutional Court and the Court of Justice of the European Union is defined by the German Court’s controversial claim to review whether EU legal acts are compatible with fundamental rights, whether they stay within the limits of EU competences (ultra vires review), or violate the identity of the German Constitution. While the German Court has developed these three review functions in different ways, the recent decision in the case of Honeywell indicates that the three lines of jurisprudence are deeply interrelated. In Honeywell, the Court developed a remarkably restrictive approach to ultra vires review, thereby following a similar path as in its famous Solange jurisprudence with regard to fundamental rights review. Against this background, Honeywell allows to put the different lines of case law into context in a way that reveals parallel patterns as well as differences in the developments. Evaluating Honeywell in this context illustrates that the Court can also be understood as a political actor that tries to maintain and define its role in the process of European integration and in the European system of multi-level governance.

Interpreting Rights Globally: Courts and Constitutional Rights in Emerging Democracies

Nsongurua J. Udombana
African Human Rights Law Journal, Vol. 5, p. 47, 2005


Democracy has spread over Africa and with it new constitutions with justiciable bills of rights have been accepted. The main focus of the Article is on how a constitution should be interpreted in view of the fact that a constitution, and especially the bill of rights, is not only made up of clear-cut rules, but also of ideals and principles. Purposive and creative interpretations are particularly needed in Africa's emerging democracies. Creative constitutional interpretations are further enhanced when courts engage in comparative constitutional analysis. The Article gives examples of how courts around the world have used comparative case law, but it further defends the approach of comparative constitutionalism in the light of the objections that have been raised against it.

The Governmental-Naxal-Tribal Conflict: Looking at Rights Through the Lens of Cultural Relativism
Journal of Indian Law and Society, Vol. 2, p. 27, Winter 2010

This paper examines the growing foothold of Naxalism in the country today by analysing the varying perspectives in which rights are viewed. The main argument is that apart from an implementation gap in the government’s policies, governmental conflict with Naxalism exists because of the difference in the value structure of the government and Naxal ideology, so that what appear as indispensable rights to one, are not so much of consequence for the other. The implications of the justiceability of Fundamental Rights, while Part IV remains non-enforceable under express provisions of the Constitution, is discussed in this context- arguing that while the present State setup emphasises upon individual rights, the Naxal vision of State puts economic and social rights at the fore. Further, the paper differentiates between the Naxal and tribal understandings of rights, aiming to enlighten upon that Naxalism is not exactly a representative of tribal vision of rights, because like the present system, Naxalism also envisions a State, whereas tribal imagination functions outside the boundaries of the State. Thus, a distinction has been attempted between the elite and subaltern version of rights the fundamental point being that mere extermination of Naxalism is not a worthy enough goal if one desires peace in light of an inclusive regime. To resolve the conflict between different cultural understandings of rights, the mechanism of Capability Approach is suggested, while examining how far the present legal system is conducive for the same.

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