"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 5, 2011

Weekly Round up of (select) Articles on Constitutional Law from SSRN

1. German Constitutional Law and Doctrine on State of Emergency - Paradigms and Dilemmas of a Traditional (Continental) Discourse

András Jakab , Pazmany Peter Catholic University


The article examines the current German constitutional provisions and the different (historical and current) paradigms of German constitutional scholarship dealing with state of emergency. It shows the different advantages and disadvantages of (not) presupposing a pre-legal state and of (not) sticking to the text of the constitution. Although the author argues for an approach which does not recognize any pre-legal state and which sticks in legal reasoning to the text of the constitution, he concedes that the actual institutional practice depends much on the legal tradition of the respective country.

2. The Constitution of China: What Purpose Does it (Not) Serve?

Surya Deva, City University of Hong Kong


It is widely accepted that constitutions serve several important purposes in the Western as well as non-Western traditions. In this article, I propose that constitutions ought to serve at least the following six ‘core’ purposes: signify a break from the past, organize political power, provide legitimacy to the legal system, empower people, limit the power of government organs, and work as a unifying force for diverse interests and groups. Against this background, this article seeks to ask and answer the following question: does the Constitution of the People’s Republic of China (PRC) serve these core purposes? Although the PRC Constitution resembles – at least in appearance – Western liberal constitutions in many respects, it is really doubtful if it serves many of these core purposes. This is not to suggest, however, that the PRC Constitution is devoid of any real value. It does serve some other ‘secondary’ purposes within the current Chinese legal framework. This article will try to shed some light on what those purposes are and whether they mean anything to people outside China interested in the study of constitutionalism.

3. Judicial Review and Racial Minorities: The U.S. Case

Leslie Friedman Goldstein , University of Delaware - Political Science & International Relations


This essay examines U.S. policy toward African-Americans, Asian residents of the U.S. and Native Americans in the first four decades after the equal protection clause was added to the U.S.Constitution in an attempt to answer the question, “Did the institution of judicial review at the national level in fact render the U.S. Supreme Court more protective than were the electorally responsive branches of the national government toward the rights of racial minorities mistreated by local majorities (specifically, blacks, Asians, and Native Americans)? It concludes that it is not correct to say, as many scholars do, that the U.S. Supreme Court buried Reconstruction.

4. Making Constitutions in Deeply Divided Societies

Hanna Lerner , Tel Aviv University - Department of Political Science


How can societies still grappling over the common values and shared vision of their state draft a democratic constitution? This is the central puzzle of Making Constitutions in Deeply Divided Societies, of which the introduction chapter is presented. While most theories discuss constitution-making in the context of a moment of revolutionary change, the book argues that an incrementalist approach to constitution-making can enable societies riven by deep internal disagreements to either enact a written constitution or function with an unwritten one. It illustrates the process of constitution-writing in three deeply divided societies – Israel, India and Ireland – and explores the various incrementalist strategies deployed by their drafters. These include the avoidance of clear decisions, the use of ambivalent legal language and the inclusion of contrasting provisions in the constitution. Such techniques allow the deferral of controversial choices regarding the foundational aspects of the polity to future political institutions, thus enabling the constitution to reflect a reality of divided identity.

5. James Madison, Law Student and Demi-Lawyer

Mary Sarah Bilder , Boston College - Law School


We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders - John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson - law has been seen as largely irrelevant to Madison’s intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison’s significant grasp of law and his striking curiosity about the problem of language. Madison’s interest in interpretation is certainly not news to scholars. These notes, however, help to establish that this interest predated the Constitution and that his interest in constitutional interpretation was an application of a larger interest in language. Moreover, Madison thought about the problem of legal interpretation as a student of law, never from the secure status of lawyer. Over his lifetime, he advocated a variety of institutional approaches to constitutional interpretation, and this comfort with nonjudicial interpreters, along with a peculiar ambivalence about the proper location of constitutional interpretation, may owe a great deal to his self-perception as a law student but never a lawyer.

6. The Unconstitutionality of Supreme Court Recusal Standards

Louis J. Virelli III , Stetson University College of Law


Supreme Court recusal is one of the most timely and hotly contested issues in American law. Recent debate over when justices should be precluded from deciding certain cases has included public calls for the exclusion of Justices Thomas and Kagan from any future cases addressing the constitutionality of the controversial Affordable Care Act, the congressional testimony of two sitting justices, a letter from over 130 law professors successfully prodding Congress to introduce a new Supreme Court recusal reform bill, and numerous editorials in national print and electronic media outlets. Among the wide variety of voices in the discussion, a singular theme has emerged - more rigorous congressional regulation of Supreme Court recusal practice is needed to protect the integrity and legitimacy of the Court.

This discussion, however, misses the point. Lost in the impassioned debate about when justices should recuse themselves is a far more important and fundamental constitutional question: who should make that decision? This issue is at the core of our constitutional separation of powers and federalism principles, and should take center stage in the debate over Supreme Court recusal. This Article is the first to comprehensively apply separation of powers principles to the question of Supreme Court recusal, and argues that the Constitution requires that the Supreme Court be the sole arbiter of its own recusal standards. This argument shifts the focus of the debate from an ineffectual and unrealistic congressional command model, based primarily on notions of judicial ethics, to a more fundamental constitutional inquiry into the proper exercise of legislative and judicial authority. While this Article represents a significant break from current orthodoxy, it is imperative to situate the Court’s recusal decisions within the proper normative framework. Understanding the unconstitutionality of Supreme Court recusal standards should yield a more useful and transparent dialogue about the Court’s recusal practices going forward.

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