"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.

Monday, September 26, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

Hungary: The New Basic Law

Marton Varju

European Public Law Journal, Forthcoming


The birth of a new constitution is an exceptional event in contemporary Europe and an outstanding opportunity for public lawyers to make the best use of the richness of models, experiences and requirements European constitutionalism offers. The pleasant difficulties the drafters face come from the profusion of transplantable solutions available in other European jurisdictions and from the external constraints placed on national constitutions by European constitutional law, most notably the law of the European Convention on Human Rights. Selecting the right constitutional ingredients from other jurisdictions and establishing an appropriate response to European obligations requires care and expertise. The European elements only add to the already complex task of producing a constitutional document suitable for a state in 21st century Europe.

A new constitution would need to acknowledge and express the developments in how the state interacts with its environment. The shift from hierarchical modes of government to more complex structures and activities of governance, the transformation from a provider and owner state to a regulatory state and the gradual decrement in the European Union of the state's autonomy in regulating the market should have an impact on the definition of basic constitutional concepts, such as sovereignty, power, accountability and citizenship. The evolution of new forms of accountability should be expressed in the constitution along the traditional modes of democratic and legal accountability. Open government and the transparency of governance should be elevated to the position of basic constitutional principles. The language of fundamental rights in the constitution should be able to express the relationship between the state and the individual and the state and the market in an open and pluralistic society.

The process of constitution-making and some of the content of the new constitution attracted severe criticism from politicians, NGOs, intellectuals and experts. In particular, the opinions of the Venice Commission condemned the new Basic Law. The Commission pointed out that the constitution-making process lacked transparency and social dialogue, and received some substantive changes, such as the limitations of the competences of the Hungarian Constitutional Court, the new catalogue of fundamental rights and the regulation of certain substantive issues, in particular the role and powers of the judiciary, with reservations. The government responded by observing that the solutions adopted in the new Basic Law were all inspired by one or another constitution of EU Member States. Whether shopping around among European constitutions was an appropriate method of constitution-making was not considered by the government.

The Idea of the Constitution as Hard Law

William W. Van Alstyne

Journal of Legal Education, Vol. 37, No. 174, 1987


This article explores the idea of the Constitution as actual law rather than a simple statement of ideals. Although the Framers completed their original goal of correcting the Articles of Confederation by laying out a simple structure of government, the overly functional nature of the checks and balances included in the Constitution signals that it serves the greater purpose of a functional guide and by extension, acts as law itself.

Nepal's Constitution Writing Process: Rebuilding the Ship While at Sea

Andreas Follesdal

International Journal of Minority and Group Rights, Vol. 18, No. 3, pp. 287-291, 2011


In order to understand the recent political and constitutional events of Nepal, and to discern feasible and fair ways to move forward, it is essential to consider the complex composition, circumstances and potential for conflicts by and among the many groups and minorities that constitute the people of Nepal.

The future inclusion of marginalized groups requires the drafters of the constitution to attend closely to various models and mechanisms for managing group claims and conflicts. They include a federal Nepal, various group rights, and a voting system of proportional representation. Closer scrutiny reveals that these demands may be interpreted and institutionalized in several ways consistent with the objectives and needs of the population, especially the desire to prevent domination by a predatory centre, and to bolster local autonomy. To understand and facilitate these developments, the present special issue explores several perspectives and analyses.

A Constitution for Everyone

Bruce Ledewitz

Duquesne University School of Law Research Paper No. 2011-20


Our Constitution is for everyone, but perhaps not in the way people assume. Our federal constitution protects everyone in the sense that all citizens may rely upon it in court, if necessary. But the Constitution is also for everyone in the sense that constitutional interpretation itself is a public and popular responsibility – and ought to be such.

The Person’s Right to Integrity in the Light of the Treaty Establishing a Constitution for Europe

Carmen Todica

Law Annals of Titu Maiorescu University, 2004


Incorporated in Part II of the Draft Treaty on the establishment of an European Constitution, The Chart Of Fundamental Rights of the European Union is the elaborated statement of the civil, political, economical and social rights recognized by the EU member states. It does not only contain a series of fundamental and classic rights, but also a series of rights on the current preoccupations of European citizens.

Without creating new rights, which is a fact supported by its content, the Chart aims at valuating the current rights of the domestic legislation.

From this point of view, the Chart can be qualified as a product of these traditions, an undertaking to synthesize the values, rights and principles shared by the member states.

Interpreting This Constitution: The Unhelpful Contributions of Special Theories of Judicial Review

William W. Van Alstyne

University of Florida Law Review, Vol. 35, No. 209, 1983


This paper examines several different theories surrounding judicial review and finds many of these theories lacking. Modern trends of literal interpretations and precise language have removed the optimistic nature of Constitutional language and is largely responsible for the hesitancy of other nations to adopt a supreme constitution.

The Uncertain Power of the President to Execute the Laws

Bruce Ledewitz

Duquesne University School of Law Research Paper No. 2011-19


Among the many grants of power to the President, none is more significant nor more controversial than the power of the President over execution of the laws. Constitutional battles have taken place over the extent to which the power to execute the laws implies power to go beyond statutes enacted by Congress. While arguments over the definition and scope of the power to execute the laws will continue, a potentially more significant question is being ignored. Under the Constitution, who executes

Sexual Orientations, Rights, and the Body: Immutability, Essentialism, and Nativism

Edward Stein

Social Research: An International Quarterly, Vol. 78, No. 2, pp. 633-658, Summer 2011


Many people, on both sides of the issue, believe that understanding how sexual orientations develop is legally, ethically, and politically relevant to LGB rights. This article examines two “arguments from etiology,” which the author calls the “born that way” and the “not a choice” arguments, ultimately concluding that how sexual orientations develop is neither relevant nor useful in legal, political, or social contexts. These arguments connect to the role of the “immutability factor” in the context of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution and in similar clauses in state constitutions. The article begins with a review of the conceptual landscape related to sexual orientation and immutability. Setting aside the strength of their empirical premises, some ethical and pragmatic criticisms of these etiological arguments are then discussed. Finally, the article examines how immutability has been discussed in recent court cases about same-sex marriage. In these cases, courts are divided on the meaning of immutability, its relevance, and how to determine whether sexual orientations are immutable. The article concludes that rather than focusing on scientific issues about how sexual orientations are embodied, the better strategy for LGB advocates is to focus on arguments based in justice, equality, and fairness.

Why the EU Does Not Need a Uniform Approach to Human Rights

Andreas Follesdal

NEW SPACES OF EUROPEAN GOVERNANCE, J. Melchior, Vienna, Facultas, eds., Forthcoming


Human rights and Europeanisation raise at least three sets of research questions for political science: To explain the emergence and maintenance of European human rights regimes, to explain the implementation and compliance with particular European human rights policies; and thirdly: issues of political theory: Which human rights should be secured in Europe, by whom, and how, taking due account of what roles human rights should play in multilevel political orders, and the Principle of Subsidiarity.

Critics accuse the EU of double standards between its internal and external human rights policies: between how the human rights of EU residents are secured, and to how human rights affect EU foreign policies in a broad sense. I argue that there are multiple roles of human rights within multi-level political orders, and that these give rise to different standards for various actions. In particular, while the EU does need a consistent set of human rights policies, we may accept stricter standards against Member States than against other states, yet be more restrictive concerning the appropriate kinds of intervention to correct violations. A ‘uniform’ policy is thus not required. The mechanisms of the Treaty establishing a Constitution for Europe that increase subsidiarity and human rights do enhance the legitimacy of the EU, and promote much needed trustworthiness. But they are incompletely developed and operationalised in the document; they stand in some internal tension; and seem partly at odds with standard normative theory.

Constitutionalizing an Enforceable Right to Food: A New Tool for Combating Hunger

Michael J. McDermott

Boston College International and Comparative Law Review, Vol. 35, No. 2, 2012


"When millions of people die in a famine, it is hard to avoid the thought that something terribly criminal is going on. The law, which defines and protects our rights as citizens, must somehow be compromised by these dreadful events. In seeking a remedy to this problem of terrible vulnerability, it is natural to turn towards a reform of the legal system, so that rights of social security can be made to stand as guarantees of minimal protection and survival."

Without enforcement mechanisms within the national legal system, the international right to food fails to serve as an effective tool for combating hunger. This Note is the first to compare effective national right to food efforts and identify essential elements underlying a justiciable, national right to food. Part I of this Note provides historical background of the internationally recognized right to food and an overview of national responses to this right. Part II discusses the right to food as a constitutional provision and details how the right has been created, defined, and enforced in South Africa, India, and Brazil. Finally, Part III applies the insight from South Africa, India, and Brazil to Mexico’s efforts to ensure the right to food through national policies and grassroots social movements. This Note identifies the essential foundational elements required for establishing a national right to food and concludes that the right to food is most effective when national constitutions provide justiciable means for legal redress.

Civil Disobedience, Injunctions, and the First Amendment

Bruce Ledewitz

Hofstra Law Review, Vol. 19, p. 67, 1990


Classic First Amendment law divides the world of expressive conduct into two parts: that which is protected by the Constitution and that which is not. Expressive conduct protected by the First Amendment generally cannot be prohibited by the government, though it may be regulated with reference to what is called time, place and manner. Expressive conduct that is not protected by the First Amendment can be prohibited by the government to precisely the same extent as any other kind of conduct. Indeed, the Supreme Court has upheld severe penalties for non-protected expressive conduct.

Capital Punishment Jurisprudence: A Critical Assessment of the Supreme Court of Uganda's Judgment in Attorney General v Susan Kigula and 417 Others

Barrie Sander

Journal of African Law, Vol. 55, pp 261-279, 2011


The Ugandan Supreme Court's decision in Attorney General v Susan Kigula & 417 Others ended a ten year constitutional challenge against capital punishment. The attorney general was appealing the Constitutional Court's declarations that a mandatory death penalty and a delay on death row of more than three years violate Uganda's Constitution. The respondents cross-appealed the Constitutional Court's declarations that the death penalty is constitutional and that hanging is an appropriate and therefore constitutional method of execution. The Supreme Court dismissed both the appeals and cross-appeals. This article summarizes the Supreme Court's findings and analyses the court's reasoning. It demonstrates that, while the court's reasoning is generally in line with the interpretations offered by international courts and human rights bodies, the court arguably missed an opportunity to take a bolder approach regarding the relationship between the death penalty and the prohibition on cruel, inhuman and degrading treatment, particularly in light of recent international trends.

International Arbitration: A New Mechanism to Settle Intra-State Territorial Disputes? The Divorce of Sudan and South Sudan and the Abyei Question

Cindy Daase

August 19, 2011


In 2008, the Government of Sudan (GoS) and the Sudan People's Liberation Movement/Army (SPLM/A) submitted an arbitration agreement with the Permanent Court of Arbitration (PCA) in The Hague. In a unique fast track procedure, an international arbitration tribunal had to determine in accordance with the Comprehensive Peace Agreement (CAP) of 2005, in particular the Abyei Protocol and Abyei Appendix, the Interim National Constitution (INC) and general principles of law, whether the Abyei Border Commission (ABC) exceeded its mandate, which was to define and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905. In case of excess, the parties entrusted the tribunal with redefining the boundaries of the disputed territory based on the parties’ submissions. To guarantee the transparency of the procedure and to generate acceptance by all stakeholders on the ground, all hearings and documents were made publically available. The procedure and the more than 200-pages-long final Award from July 2009 constitute an illustrative example of an international dispute settlement procedure dealing with an intra-state (territorial) dispute between a state and a secessionist movement. The paper evaluates the still disputed status of the Abyei Region and the record of the parties’ (non-)compliance with the Abyei Award in the ongoing status-negotiations between Sudan and the newly independent South Sudan. By inter alia taking a comparative perspective with other international dispute settlement mechanisms the paper critically discusses the legal-political implications of the Abyei Arbitration and whether it could serve as a model or lesson learned when it comes to the effectiveness and success of international arbitration and its potential contribution to the settlement of intra-state (territorial) disputes.

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