"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.

Tuesday, October 4, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

Michael J. Perry

Emory University School of Law; University of San Diego - School of Law and Joan B. Kroc School of Peace Studies


Emory Public Law Research Paper No. 11-161

San Diego Legal Studies Paper No. 11-075


The right of every human being – every human being without exception – not to be subjected to any punishment that is “cruel, inhuman or degrading” is an international human right. A version of that right is entrenched in the constitutional law of the United States: the right of every human being – again, without exception – not to be subjected to any punishment that is “cruel and unusual”. In this paper, the author inquire both whether capital punishment is “cruel, inhuman or degrading” and, next, whether capital punishment is “cruel and unusual”.

Tribal Consent

Matthew L. M. Fletcher

Michigan State University College of Law

Stanford Journal of Civil Rights and Civil Liberties, Forthcoming

MSU Legal Studies Research Paper No. 09-20


Tribal consent to federal statutes, regulations, and cases that decide matters critical to American Indian people and Indian tribes long has been lacking. The nineteenth and twentieth century Supreme Court cases are replete with efforts by Indians and tribes to avoid the dictates of many of these laws and regulations that directly injured tribal interests, almost always to no avail. Congress legislated, the Executive branch acted, and the Supreme Court either walked away or upheld the law and its enforcement. Conversely, tribal governance has been dramatically altered in recent decades in part by the notion that non-Indians and non-tribal entities have not consented to assertions of tribal government authority over them. This lack of consent is meaningful because Indian tribes are not beholden to the dictates of the American Constitution (nor could they be), and so the nonmembers could be subject to governmental authority unfettered by individual constitutional rights.

The first part of this paper is a short history of the incorporation of Indian tribes into the American policy, largely without the consent of Indian tribes and Indian people. The second part moves beyond the discussion of the lack of tribal consent to federal and state governance, and how that lack of consent actually generated the legal and political justification for Congressional (and federal) plenary power over Indian affairs. The third part describes how express and literal consent has come to dominate federal common law on tribal authority over nonmembers. This part explores the irony of introducing nonmembers in vast numbers into Indian country without tribal consent, and then forcing tribal governments to acquire literal consent from those nonmembers in order to govern them. The fourth, and last, part argues for a theory of tribal consent. Unlike the vague and even fictional consent espoused by thinkers such as Justice Kennedy, and denigrated by critics who bemoan its limitations, tribal consent theory should be explored and integrated in federal Indian law. In fact, the United Nations Declaration of the Rights of Indigenous Peoples requires that states acquired the free and informed consent of Indigenous governments and people before taking action detrimental to those peoples, giving rise to a kind of literal consent theory and practice desperately needed in American Indian affairs.

Justice Scalia and the Art of Rhetoric

Jeffrey M. Shaman

DePaul University - College of Law

September 23, 2011


This article examines Justice Scalia's judicial opinions from a literary perspective rather than a legal one to demonstrate that he is a master of metaphor and other belletristic flourishes. Focusing on the style rather than the substance of his writing, the article uses examples from various Scalia opinions to illustrate that he wields a wicked poison pen, peppers his opinions with creative lists of examples, and is wont to drop in a bon mot here and there, not to mention an arcane foreign phrase that sends lesser mortals rushing to their Latin, French, or German dictionaries. Along the way, the article reveals some fascinating information about the tropes and allusions that Justice Scalia uses. And between the lines, the article offers criticism of Scalia's conservative philosophy.

Origin Myth: The Persons Case, the Living Tree, and the New Originalism

Bradley W. Miller

University of Western Ontario - Faculty of Law

THE CHALLENGE OF ORIGINALISM, G. Huscroft, B. Miller eds., Cambridge University Press, 2011


‘Originalist constitutional interpretation is fundamentally incompatible with 80 years of Canadian jurisprudence.’ This statement would command nearly universal agreement from Canadian judges, lawyers, and law professors. But it rests on both an inadequate engagement with originalist theory and a fundamental misreading of a celebrated constitutional decision from the 1930s – the Persons Case.

In this paper, which was first prepared for a symposium on originalist constitutional theory hosted by the Public Law and Legal Philosophy Research Group at the University of Western Ontario, Faculty of Law in 2008, the author examines the standard reading of the reasons for judgment of both the Supreme Court of Canada and the Privy Council (held to be the font of “living tree” constitutional interpretation in Canada), and come to the surprising conclusion that each judgment is best understood as originalist in method. The deeper question raised by this analysis is the extent to which contemporary Canadian constitutional interpretation (which relies on the Privy Council decision) is, in fact, incompatible with originalist constitutional interpretation.

Judiciaries in Crisis - Some Comparative Perspectives

Hoong Phun Lee

Monash University - Faculty of Law

Federal Law Review, Vol. 38, No. 3, p. 371, 2010

Monash University Faculty of Law Legal Studies Research Paper No. 2010/36


In this article, it is intended to explore a spectrum of controversies which have affected the judiciaries of a number of countries which had emerged from their colonial cocoon post-World War II. A perusal of the crises which have engulfed the judiciary in a number of countries around the world helps to remind us of how lucky it is in Australia where an independent judiciary is taken as a given. These crises illustrate in a graphic manner the actual meaning of judicial independence and the severe consequences for the citizenry when it is threatened. The broad lesson emanating from this excursus points to the need, even in established liberal democracies, for constant vigilance to confront executive attempts, subtle and not so subtle, to subvert the judicial institution.

Faulkner’s Voting Rights Act: The Sound and Fury of Section Five

Joel Heller

September 22, 2011


In its most recent examination of the Voting Rights Act, the Supreme Court told a story about the South. Although the Court ultimately did not rule on the continued constitutionality of § 5, the VRA provision that singles out certain jurisdictions with a history of racially discriminatory voting practices for additional regulation, its opinion expressed significant doubt that the measure was still justified. In this tale of progress and redemption, the Court concluded that “things have changed in the South.”

One body of commentary that was not considered in this story was the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same thematic and sociological concerns that animate § 5. Specifically, Faulkner’s novels explore the power of memory in the South and the ongoing influence of the past on present actions and attitudes. In his depiction of the burden of memory, Faulkner suggests a distinct role for § 5 that policymakers and commentators should consider in the debate over its continued necessity. Rather than punishing the sons for the sins of the fathers, the provision can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present.

This Article explores how Faulkner’s novels can contribute to a better understanding of the role § 5 serves in the modern South and thus inform the debate over whether the law remains constitutional. In doing so, it also considers the role literature can play in legal analysis beyond the uses typically identified by the law and literature movement.

Constitutional Environmental Rights Worldwide

James May

Widener University - School of Law

Erin Daly

Widener University - School of Law

PRINCIPLES OF CONSTITUTIONAL ENVIRONMENTAL LAW, p. 329, James May, ed., American Bar Association, 2011

Widener Law School Legal Studies Research Paper No. 11-35


This chapter addresses the worldwide phenomenon of constitutional environmental rights. Roughly five dozen countries have constitutional provisions that form individualized rights to a healthy, adequate, or quality environment. Domestic courts and international tribunals are enforcing constitutionally enshrined environmental rights with growing frequency by recognizing basic human rights to clean water, clean air, and environmental opportunity. This chapter explains how courts worldwide have viewed constitutionally enshrined environmental rights and why these rights have faced such resistance by the bench and bar. It concludes by summarizing features that influence litigation strategies for practitioners.

Details: Specific Facts and the First Amendment

Ashutosh Avinash Bhagwat

UC Davis School of Law

September 28, 2011


First Amendment theory and judicial decisions have traditionally focused their analysis primarily on the regulation and suppression of ideas, opinions, and advocacy. The great free speech disputes of the Twentieth Century have produced a robust body of law which, at least in the political sphere, gives very strong protection to such speech. But ideas and opinions are not the only sorts of information conveyed by speech. What about facts, and in particular, what about specific facts, what I call details? Cases such as New York Times v. Sullivan and its progeny discuss the proper treatment of false facts, but what of true, accurate details? Here, both the courts and the commentators have been almost entirely silent. An examination of recent cases reveals, however, that factual speech has been at the center of in a number of important First Amendment disputes, and that with the rise of the Internet such disputes are increasing in number. Such cases arise in a wide variety of contexts, including privacy disputes over disclosure of personal details, attempts to regulate dangerous speech, disputes over technical and scientific speech, and disclosure of military or diplomatic secrets. Furthermore, the judicial decisions in this area are in utter disarray. Courts apply inconsistent doctrinal rules to essentially identical cases, and reach wildly varying results. Some reconsideration is clearly needed here.

The author argues that if one accepts the view that the primary, albeit not necessarily the only, purpose of the First Amendment is to protect the process of democratic self-governance, then it will often be true that specific, factual speech is less central to First Amendment values than ideas or opinions, because it contributes little to self-governance.

Reflections on the Teaching of Constitutional Law

William W. Van Alstyne

William & Mary Law School

St. Louis University Law Journal, Vol. 49, No. 653, 2005


This article reflects on the nature of Constitutional Law classes. It encourages an understanding of the difficulties faced by judges charged with interpreting the Constitution. It also advocates each student develop their own interpretation based on the document apart from court opinions.

The Basic Law and Democratization in Hong Kong

Michael C. Davis

University of Hong Kong - Faculty of Law

Loyal International Law Review, Vol. 3, No. 165, 2006


Hong Kong's constitution, the Hong Kong Basic Law ("Basic Law"), has sparked a number of debates over democratization and its pace. It is generally understood that greater democratization will mean greater autonomy and vice versa, less democracy means more control by Beijing. Will the democracy promised under the "one country, two systems" formula in Hong Kong be achieved? Does Beijing's constant interference to head off democratization also pose a grave risk to the rule of law and related stability in Hong Kong? The April 26, 2004 response of the Standing Committee to the Chief Executive's report sealed the doom for democratic reform, essentially barring any meaningful reform for the 2007-2008 elections by requiring continued use of the Election Committee for selecting the Chief Executive - though its membership could be increased - and specifying that the current ratio of directly elected to functional legislators be maintained. The interpretation, by effectively amending the Basic Law, posed a severe threat to Hong Kong's autonomy and rule of law, and largely took the democratic reform debate out of Hong Kong hands. While the democratic camp has insisted that the nominating committee for popular election of the Chief Executive not be used as a device to screen out democratic candidates, their stance faces severe resistance from Beijing supporters.

The Political Question Doctrine

James May

Widener University - School of Law

PRINCIPLES OF CONSTITUTIONAL ENVIRONMENTAL LAW, p. 217, James May, ed., American Bar Association, 2011

Widener Law School Legal Studies Research Paper No. 11-33


This chapter addresses the extraordinary notion that the Constitution might insulate from federal judicial review some areas of environmental law, including even traditional common law tort causes of action. How? The answer lies in understanding the political question doctrine, under which a federal court concludes that a case is not justiciable because it is somehow textually or prudentially consigned to the elected branches of government. The doctrine's effect makes it particularly important to practitioners and to the very development of the law: A case dismissed under the political question doctrine ends without needing to reach the statutory, common law, or constitutional questions addressed with in this book. Moreover, pleadings, discovery, and motion practice are obviated, and the case is disposed of - merits aside - lock, stock, and barrel.

Constitutional Reasoning for Rights

Mary Jane Morrison

Hamline University

Missouri Law Review, Vol. 54, p. 29, 1989


This article explores the nature of constitutional reasoning about rights, with particular emphasis on the reasoning surrounding implied fundamental rights and substantive due process privacy. It describes some of the ways constitutional reasoning can lead to different sets of answers, and the author provides some “answers” for constitutional reasoning patterns in general, examples of implied reasoning, and substantive due process privacy. The author explores the meaning of “right” in constitutional law as a way to talk about constitutional interpretation we find intellectually and legally coherent and satisfying.

The International Constitution

Patrick Macklem

University of Toronto - Faculty of Law

September 23, 2011


This essay locates current debates in Canada on the constitutional dimensions of labour market regulation in light of a dramatic transformation in Canada’s constitutional relationship with international law. Unlike the constitutions of some countries, the Constitution of Canada is silent on the domestic legal status of international law. Traditionally understood, Canada is a dualist jurisdiction, whereby an international treaty obligation does not become domestic law unless it has been implemented in domestic legislation. This traditional view of the domestic implications of international law, however, has gradually but steadily been replaced by a much more porous understanding of the boundary between the international and national legal spheres. The essay argues that one of the consequences of this transformation is that the legal capacity of provincial legislatures to tailor labour market regulation to the interests of capital, engage in regulatory competition with other provinces, and experiment with new forms of regulating employment relations, is now curtailed by international standards that receive constitutional expression regardless of whether they have been implemented in domestic legislation. More generally, the essay explores the nature of Canadian constitutionalism in an age of post-dualism.

Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts

Jill I. Goldenziel

Harvard Law School

September 23, 2011


This article explains the development of judicial independence in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because of their significance to Islamists, who pose the biggest challenge to the power of traditional elites in majority-Muslim countries; and their broad legal ramifications with respect to judicial power, individual rights, constitutional convergence, religious freedom, and the relationship between shari’a and state law. The article also explains how national courts have interpreted Islamic law and challenges the notion that courts function to secularize state-sponsored religion. To the author’s knowledge, this article contributes the first complete discussion in the English-language academic literature of recent high court cases in Egypt, Kuwait, and Turkey that are unavailable in translation, thus contributing to the body of foreign constitutional case law available for comparative study.

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