"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, October 23, 2011

SSRN: Round up of Articles on Constitutional Law

Measure 26, The Mississippi Bill of Rights, and the Duty to Protect

Christopher R. Green

The Mississippi Law Journal Online, Forthcoming


Measure 26, which Mississippi voters will consider on November 8, 2011, would amend the Mississippi Bill of Rights to clarify that "person" and "persons" begin at fertilization. Backers have claimed it would require the state to protect human embryos and fetuses from the moment of fertilization, while opponents have argued that it would impose liability for life-saving medicine, ban forms of birth control, or require criminal investigations of miscarriages. As the state constitution is currently understood by courts, however, these claims are inaccurate. Whatever the goals of backers, Measure 26 is not a frontal assault on Roe v. Wade. It would offer enhanced tort remedies under section 24 of the Mississippi Constitution when embryos and fetuses are injured and would prevent state action harming embryos and fetuses under section 14. More significant effects than these, however, would depend on a state-constitutional duty to protect. While the Mississippi Supreme Court might disagree with DeShaney v. Winnebago County on state-constitutional grounds, Measure 26 itself introduces no duty to protect into the Mississippi Constitution.

The Quest for Self-Rule in Tibet

Michael C. Davis

University of Hong Kong - Faculty of Law

Journal of Democracy, Vol. 18, No. 4, October 2007


The difficulties between the PRC Government and the Tibetan Government-in-Exile over their favored path to autonomy in Tibet stretch back over fifty years since China's original occupation and the Dalai Lama's 1959 flight into exile. While China's actual control over Tibet has gained international recognition, a non-violent strategy of resistance against sometimes-harsh policies has won the Tibetan exiles considerable international solicitude. This article assesses the historical record and current practice to argue that a form of autonomy that is appropriately grounded in China's Constitution and international human rights practice may offer a path out of the current dispute.

Establishing a Workable Autonomy in Tibet

Michael C. Davis

University of Hong Kong - Faculty of Law


This article recommends a change in China’s policy toward Tibet to better conform to national commitments and international obligations. Since the People’s Liberation Army marched into Tibet in the 1950s China has generally imposed its will on the Tibetan people. The 1951 '17-Point Agreement on Measures for the Peaceful Liberation of Tibet' reflected the view that China was liberating Tibetan territory from imperialist forces. From the Tibetan perspective such 'liberation' was imposed and promises of local self-rule were not kept. The emerging communist and totalitarian state that followed the 1949 Chinese revolution proved incapable of allowing genuine Tibetan self-rule. A harsh attitude of domination ensued. The present instrument of Chinese rule is China’s national minority policy provided in Article 4 of the Chinese Constitution and China’s Law on Regional National Autonomy (LRNA). Though this policy promises local self-rule, the habits of intervention both formally in the political system and in the mechanisms of Communist Party oversight leave Tibetans with very little of the promised legislative and administrative autonomy. Assessing this policy against the backdrop of China’s long historical relationship with Tibet and the requirements of international law, this article concludes that China’s national minority policy fails to meet its obligations to the Tibetan people. Taking account of standards articulated in the new UN Declaration on the Rights of Indigenous Peoples, this article recommends a change of course to establish a more genuine autonomy under Article 31 of the Chinese Constitution relating to the establishment of special administrative regions.

The Third Amendment: Forgotten but Not Gone

Tom W. Bell

William & Mary Bill of Rights, Vol. 2, Issue 1, 1993


Pity the Third Amendment. The other amendments of the United States Constitution's Bill of Rights inspire public adoration and volumes of legal research. Meanwhile, the Third Amendment languishes in comparative oblivion or, worse yet, suffers ridicule. The Third Amendment has especially suffered from a lack of serious and sustained legal analysis. This paper aims to fill the most glaring gaps in Third Amendment scholarship, so as to round out our knowledge of the Bill of Rights and to pay the Third Amendment respect long past due.

From Unwritten to Written: Transformation in the British Common-Law Constitution

David Jenkins

Vanderbilt Journal of Transnational Law, Vol. 36, No. 3, 2003


This Article posits that the British Constitution is changing by incorporating written principles that restrain Parliament through judicial review. The Author asserts that this constitutional model has basis in the common law and the orthodox theories of Blackstone and Dicey. In addition, the ultra vires doctrine supports the model and provides a basis for judicial review of Parliament. As constitutions may accommodate written and unwritten elements of law, as well as various means of enforcement and change, the Author posits that constitutions are defined by how strongly they reflect underlying legal norms. With a shift in the rule of recognition endorsing judicial review, this expressive function of constitutions democratically legitimizes constitutional texts as positivist expressions of popular will that bind Parliament. Therefore, courts may constitutionalize statutes or treaties coming over time to represent shifting norms through common law adjudication. Furthermore, the Author illustrates that such a quasi-written, common-law constitution is already emerging in the United Kingdom by examining cases based upon the Human Rights Act and the European Communities Act.

Montesquieu and the ‘French’ Model of Separation of Powers

Marco Goldoni

University of Antwerp - Centre for Law and Cosmopolitan Values


Constitutional scholarship has put much emphasis on Montesquieu’s principle of separation of powers as developed in the chapter of ‘The Spirit of Laws’ on the English constitution (XI, 6). It has also been quite common to mix up this model of separation of powers with elements taken from other sections of Montesquieu’s masterpiece. The starting point of this paper is that there is an alternative second model of separation powers based on the French monarchy of intermediate powers, which is also an instantiation of limited government. From this premise, the paper’s aim is to carve out a second version of the principle of separation of powers by focusing on the different role and nature of judicial power in the English and French models. It turns out that the French version of the separation of powers is not based on a strict separation, since it bestows on the higher judicial intermediate bodies both judicial and legislative functions. This also leads to a kind of constitutionalism that is ‘in between’ ancient and modern, as it is exemplified by Montesquieu’s take on the functioning of the Parliaments. As it is typical of his political thought, he sees this intermediate power as representative of traditional and conservative social forces but, at the same time, in virtue of its social status, as an institution which strengthens, by opposing it, the monarch’s legislative rationality and legally constrains political action.

A Federal Human Rights Act and the Reshaping of Australian Constitutional Law

Hoong Phun Lee

Monash University Faculty of Law Legal Studies Research Paper No. 2010/52


In this article, I will engage in an exercise of crystal ball gazing regarding the future shaping of Australian constitutional law, on the assumption that a statutory HRA does come into existence. The thrust of this article is to look at how the character of Australian constitutional law will likely be affected or reshaped by the impact of a HRA embodying the key recommendations emanating from the NHRC’s Report. I will focus on two main classes of case which are areas of particular interest when a HRA comes into effect. The first class relates to those cases in which the validity of an impugned federal enactment involves the operation of the characterisation process and the scope of the external affairs power, while the second class relates to those cases in which it is asserted that there is a contravention of a constitutional limitation, whether express or implied. In regard to the second class of cases, the concept of ‘proportionality’ and the various contexts in which the concept is applicable will be considered. I will also examine the significance of Chapter III of the Commonwealth Constitution to the proposed ‘declaration of incompatibility’ mechanism and consider how a HRA will impact on Australia’s system of parliamentary democracy.

The Lockean Constitution: Separation of Powers and the Limits of Prerogative

David Jenkins

McGill Law Journal, Vol. 56, No. 3, 2011


In the post-9/11 era, many legal scholars have advanced theories of constitutional law that make allowance for unreviewable discretionary decision making by the executive branch, particularly in the context of the “war on terror”. Drawing on Lockean constitutional theory for normative support, the author develops an alternative constitutional model that addresses the problem of discretionary executive power. Locke’s constitution divides political power between the executive and the legislature, with the latter checking and balancing the former. Both the executive and the legislature have a fiduciary trust to act for the public good. Locke closely links the public good and the constitution such that any breach of the constitution is per se a breach of the public good. Therefore, unreviewable decision making by the executive always violates its trust because it is a breach of the constitution. After setting out Locke’s theory of separation of powers, the author presents a modified model that makes the judiciary, in addition to the legislature, responsible for the accountability of executive decision makers. Although the executive retains its prerogative power, it must always remain accountable to the legislature and the courts, even in emergencies.

The Murder of Social Democracy by the People and for the People - Critical Analysis of Jan Lokpal Bill

Manish Raj

National Law Institute University (NLIU), Bhopal


What should be the ideal and accepted form or method to be adopted to show the majority view of the people of one nation? For sure, the ideal method to show the majority would not be by giving a missed call on a particular mobile number the majority on opinion be shown. In country like India where the present population is increased to 121 Crore, by showing the missed call of two Crore people majority of opinion of is being proved? Is it some dance/singing competition show going on Entertainment channel, where people are requested to vote by calling or messaging via mobile phone to show the majority in opinion to make one out of many as a winner?

A Job for the Judges: The Judiciary and the Constitution in a Massive and Complex Society

Neil K. Komesar

Michigan Law Review, Vol. 86, No. 657, 1988

Univ. of Wisconsin Legal Studies Research Paper No. Archical Collection


It is time for constitutional analysts to form constructs faithful to the realities of constitutional decisionmaking. We live in an immense and complex society. Our public decisions are made by complicated processes in which voters, interest groups, lobbyists, and the press interact with legions of legislators, administrators, and other public employees. These governmental processes produce countless government decisions. No matter how aggressive the courts or grandiose the constitutional theory only a tiny percentage of these governmental actions can ever be seriously reviewed by the judiciary. Whatever the fears of the proponents of judicial restraint, the judiciary is a societal decisionmaker already severely constrained by its physical limits. Yet, on rare occasions, the judiciary plays a significant role in societal decisionmaking. These rare occasions define what we call constitutional law and are themselves defined by a basic institutional choice: the courts decide that they and not some other societal decision-maker should resolve the substantive issue in question. From this vantage point, the study of constitutional law becomes the study of this institutional choice, which, in turn, means the study of alternative societal decisionmakers, their comparison and matching. The judicial role is defined by asking when a constrained and fragile judiciary should substitute its decisions for a sometimes badly malfunctioning political process. This article explores the elements of institutional choice in constitutional law. It shows that institutional analysis is essential but largely ignored in present constitutional scholarship and then confronts the task of building such an analysis.

Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis

Neil K. Komesar

University of Chicago Law Review, Vol. 51, p. 366, 1984

Univ. of Wisconsin Legal Studies Research Paper No. Archival Collection


When the Supreme Court decides whether the action of another branch of government is constitutionally valid, it is inevitably allocating institutional responsibility. This article argues that constitutional law is best understood and evaluated by giving central attention to this allocation of decision-making and, therefore, to the relative attributes of the alternative institutional decision-makers. The article, in other words, proposes a comparative institutional approach to constitutional law. This comparative institutional analysis has three fundamental features:(1) Courts and legislatures differ in their capacities to solve substantive questions, and the degree and kind of these differences can vary significantly. (2) The relative difficulty of various substantive questions arises from social and political realities too varied and subtle to be adequately captured in the broad analytical categories, such as substance and process or principle and policy, employed by many constitutional scholars. In general, such simple bifurcations are inferior to an approach that can more naturally accommodate the gradations in and interplay among these underlying factors. (3) Although a role for courts in our constitutional system might be based on the identification of flaws in the legislative process, thereby overcoming the presumption of constitutionality traditionally accorded the more democratic institutions, identification of a legislative flaw should not be conclusive; the analysis must be comparative. Whether and to what extent the court takes the decision from the legislature depends on the relative merits of the judiciary as a substitute decision-maker.

Constitutional Perspective of Church-State Relations in South Africa

Johan Van der Vyver

Brigham Young University Law Review, Vol. 1999, No. 2, p. 635, 2001


Prior to political transformation of the country in 1994, the new Constitution proclaimed South Africa to be a Christian State. There was indeed no established church in South Africa, but the legal system clearly favored a certain variety of Christian religions and put procedures in place that could be used to prohibit Africans from attending church services in areas proclaimed under the apartheid system to be reserved for white occupation. Religious bodies were not immune from strict security measures designed to maintain white privileges and to suppress active opposition to the racial policies of the government.

The new constitutional dispensation represents a radical transformation of South Africa’s racist and repressive past. As far as religion and religious diversity is concerned, the constitutional dispensation of the “new South Africa” can be described as one of profound toleration and accommodation. The Constitution is religiously neutral, and a single reference to “God” in the Constitution is confined to a citation from the national anthem, which includes the phrase “God bless Africa”. The Constitution guarantees freedom of religion, belief and opinion, permits religious observances in state and state-aided educational institutions, permits the State to subsidize parochial schools, makes provision under certain conditions for the recognition of polygamous (including Muslim) marriages, and prohibits discrimination based on, for example, gender, race and sexual orientation by the State and by non-State organizations, including religious institutions. Although the Constitution leaves scope for religious institutions to justify traditional practices that amount to discrimination based on gender or sexual orientation, it is submitted in the article that merely requiring a church institution to justify its internal doctrinal practices amounts to totalitarian interference by the State in the internal affairs of the church.

Modifying Originalism

Anthony Thomas Ricciardelli


One of the most persistent criticisms of originalist interpretive modalities is that they fail to reach the right result in Brown v. The Board of Education (1954). This paper suggests a solution to that problem: that, in situations where constitutional interpretation could disproportionately affect the rights of members of groups that were disenfranchised when the Constitution was adopted, a modified originalism should be used. This originalism would take into account how the provision might be different had the disenfranchised group had input at the time of adoption. For example, the Fourteenth Amendment would have been much less likely to allow segregation had African-Americans been fully enfranchised when the Amendment was ratified.

Patterns of Legalization in the Internet: Do We Need a Constitutional Theory for Internet Law?

Osvaldo Saldías

Humboldt-Universitat Zu Berlin Internet & Society Working Paper No. 2/11


The paper acknowledges a growing web of legal norms that regulate governance aspects of the Internet. Some of these norms are legally binding; others are closer to what some scholars call soft law. In order to take stock of these developments, I propose an explorative typology that can bring some systematic order into the plurality of Internet norms. Although my framework is not exhaustive, it already sheds some light into future challenges that we should expect. The prospective types that I provide are (a) positivation of soft law; (b) legalization through complementarity; c) informal legalization; and d) conflicting legalization. The results reveal that different types of Internet norms also contain a considerable potential for mutual conflicts. Whenever this occurs, we will have to make some significant choices related to the prevalence of certain social goods over others. Since the Internet environment is not a democratic republic, we cannot resort to significant procedural rules that could ordinarily prescribe hierarchies. However, the results of my typology also seems to suggest that there is considerable room for ordering principles and values according to deliberative arrangements or public reasoning. Although research on Internet governance has provided valuable insights into actors, processes, and interests, the time seems right to focus on the proto-legal order that is already in place. The normative question is already waiting for us: How should we deal with this nascent web of Internet laws? The paper claims that unless we shut down the Internet, we will have to engage in dialogue about the “c” word; “c” as in constitution.

Rights of Persons Living with HIV/AIDS and Article 21 of the Indian Constitution

Sameer Boray

NALSAR University of Law; Media Law Review


This paper will examine how the courts in India have responded to rights based claims brought by people who have HIV. While the Indian Judiciary is looked at as the protector of the disadvantaged and the poor, this analysis will show how under Article 21 of the Indian Constitution, the rights of those living with HIV/AIDS can be further extended. While there exist some case law in India which has been progressive on this front, there are still cases which show the contrary. It is highly unfortunate in this age of modern science and mass dissemination of information, even the government remains mis informed on the causes of the disease, thereby curtailing basic rights which should be protected in India at least under Article 21.

Expanding Constitutional 'Dialogue': A Lesson from South Africa

Iain T. Benson

University of the Free State - Faculty of Law, Department of Constitutional Law and Philosophy of Law;


A highly significant public ceremony occurred on Thursday, October 21, 2010 in Johannesburg. It was the signing, by all major (and many minor) religions in South Africa of the South African Charter of Religious Rights and Freedoms (“SACRRF”). This Charter, once passed into law, will be the first use of an interesting provision that is in the Constitution of South Africa but the principles of which ought to be reflected upon more in Canada.

The Contours of Religious Liberty in South Africa

Johan Van der Vyver

Emory International Law Review, Vol. 21, No. 1, 2007


As far as religion and religious diversity are concerned, the South African Constitution can be described as one of profound toleration and accommodation. The Constitutional Court has on several occasions emphasized the importance of religion for the State. South Africa is therefore not a secular State but can best be described as a religiously neutral State.

The constitutional principle of non-discrimination applies not only to discrimination by the State, but also to discrimination by private individual and non-State institutions, including religious institutions. The Promotion of Equality and Prevention of Discrimination Act of 2000 amplified the constitutional proscription of discriminatory practices. When applying the non-discrimination decree to religious institutions, State courts will not unduly interfere in the internal sphere sovereignty of such institutions.

References are made to jurisprudence and/or legislation relating to a great variety of religion-specific matters, for example Muslim marriages (not recognized in South Africa as valid marriages, but the consequences of such marriages being enforced on basis of the law of contract), defining the concept of religion, the rules applicable to religious education and to corporeal punishment in schools, the sale of alcoholic liquor on Sundays and Christian holidays, and same-sex unions.

South African courts will not shy away from adjudicating ecclesiastical disputes that might involve “doctrinal entanglement”. Decisions of ecclesiastical tribunals are subject to review by (not appeals to) secular courts of law, but the courts will confine their scrutiny of ecclesiastical cases to the question whether or not the ecclesiastical tribunal acted within the confines of the religious body’s internal rules of procedure and have upheld elementary rules of justice. They will not second guess the merits of an ecclesiastical tribunal’s decision.

The essay finally deals briefly with the religious rights of a child, noting, for example, that parental rights are conditioned by the best-interests-of-the-child paradigm. Parents cannot for religious reasons withhold life-sustaining therapeutic treatment from a child, must apply “the rod of correction” within the bounds of moderate chastisement, and cannot dictate to their children the religion they should adhere to upon reaching a stage of development where they can and should decide for themselves.

Constitutionalism and the Reality of Rights

Neil K. Komesar

Univ. of Wisconsin Legal Studies Research Paper No. 1176


For lawyers and legal scholars, constitutionalism means constitutional law and rights. Familiar stories about constitutionalism, constitutional law and constitutional rights center on the balance between democracy" in the form of majoritarian political processes" and the protection of the individual" in the form of constitutional rights. These rights are often broadly defined and accompanied by lofty rhetoric. But this story is based on notions of the behavior and character of institutions, such as courts and political processes, that are both unsophisticated and unrealistic.

As relevant populations have grown in size and as social interaction and social issues have grown more complex, the reality of societal decision-making institutions has out-grown the conventional conceptions of political processes and courts and the rhetoric of rights. Significant growth in the complexity of the decisions facing societal institutions and in the number of people affected by these decisions spawns shallow and fluctuating rights. This is not a characterization limited to fledgling democracies and third-world nations. US and Europe are included.

There are essential lessons here for constitutional scholars. We can no longer afford simple stories of constitutionalism and constitutional rights. In particular, we must jettison as useless the grandiose notions of rights that infect common constitutional scholarship and examine the true character of rights and judicial review in the constitutional order. Real rights and real judicial review can play an important even crucial role in some contexts at some times. But real rights and review are strange and scarce. They are resources to be used carefully.

Constitutions Going Online – Internet-Related Dynamics in Constitutional Law?

Katharina Berner

Humboldt University of Berlin Internet & Society Working Paper No. 3/11


The internet is not merely a social phenomenon, it is more than that, it is of constitutional importance. Various academic disciplines have acknowledged this innovation‘s significance and selective internet-related issues have already been discussed from a legal perspective. But while these legal discussions have remained predominantly selective, no one has recently and comprehensively focused on the interrelationship between internet-related developments and the development of constitutions, i.e. the political and legal frameworks of states and societies within states. This gap shall be closed step-by-step. By way of example, it will be discussed at the first stage how German constitutional case-law as a major instrument for keeping pace with changing social and technical conditions has responded to internet-related challenges to the German Constitution. Simultaneously, it will be illustrated how the Court’s jurisprudence has provided a framework within which the internet may operate and further develop. It will be shown that the Constitutional Court has managed to cope with the development of the internet. Nonetheless, its way of addressing internet-related challenges may provoke further criticism and questions. Hence, assessing the Court’s response will not be an end in itself but also provide the basis for further research on internet-related dynamics in constitutional law of various states.

A Kelsenian Model of Constitutional Adjudication - The Austrian Constitutional Court

Christoph Bezemek


For more than 100 years the “American system” of adjudication mastered by one Supreme Court vested also and in particular with the power to review administrative as well as legislative acts enjoyed the virtual monopoly to serve as the role-model of Constitutional review. When the Austrian Constitution was enacted in 1920, however, it should be supplemented by an “Austrian system” designed by Hans Kelsen; creating a specialized body to review the constitutionality of legislative acts – the first Constitutional Court. This article provides an introduction the Court’s organization and proceedings.

No comments: