"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, November 13, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

The Evolution of Privacy Law and Policy in the Netherlands

Bert-Jaap Koops

Tilburg Institute for Law, Technology and Society (TILT)

Journal of Comparative Policy Analysis, Vol. 13, No. 2, pp. 165-179, 2011


This paper describes how privacy and data protection law and policy have evolved in the Netherlands from the 1960s onwards. The description is guided by two questions: have policy changes occurred in privacy legislation, and how can these changes be explained? The paper describes, first, legislation focusing on spatial and relational privacy, with a primary focus on constitutional law; second, informational privacy or data protection legislation; and third, non- privacy-focused legislation which impacts negatively on privacy and data protection. The analysis shows that, since privacy emerged on the policy agenda in the late 1960s, privacy law and policy can be roughly divided into two periods: two decades of creating general privacy frameworks in the Constitution and comprehensive data protection legislation, and two decades of updating these general frameworks in light of technological developments while also passing many privacy- diminishing laws to serve other policy goals. The rise of the information society, the network society, and the risk society can explain a privacy policy change occurring somewhere during the 1980s. This change can be interpreted either as a shift from generally privacy-friendly policy to generally privacy-unfriendly policy, or as a shift in focus from general, privacy-centric framework regulation to specific, privacy-unrelated legislation targeted at other, higher-ranking policy goals, such as organized crime, immigration, and health and safety. The current outlook for privacy protection does not seem bright, but recent developments in media and public agenda setting suggest that privacy and data protection are about to become more important policy issues in sectoral legislation. Perhaps the future of privacy protection, if it has a future, should be sought outside privacy and data protection law itself.

Constitutional Reasoning in Constitutional Courts - A European Perspective

András Jakab

Max Planck Institute for Comparative Public Law and International Law, Heidelberg


In this paper we are going to analyse how constitutional courts are able to extract the most meaning from a (necessarily) short text, such as a Constitution, with the use of sophisticated tricks (or methods) of interpretation. Partly with the help of these methods, and partly on the basis of text-independent speculations, constitutional courts and legal scholars are able to develop a system of concepts (a Rechtsdogmatik or its specific constitutional part, the Verfassungsdogmatik) considerably more sophisticated than the one of the actual text of the Constitution in order to serve as a helping toolkit for the solution of future cases. The nature of this conceptual system will be analysed, before we turn to the question of styles of constitutional reasoning. The analysis concentrates on the practice of European constitutional courts, though for purposes of classification and comparison, non-European practices will also be mentioned.

The Problem of Policing

Rachel Harmon

University of Virginia School of Law

Michigan Law Review, Forthcoming


The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights, and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate for regulating the police. Constitutional law does not protect important interests below the constitutional threshold or address effectively the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits. In this article, I advocate a new agenda for scholars considering the police, one that asks not how the Constitution constrains the police, but how law and public policy can best regulate the police. First, scholars should evaluate policing practices to determine what harms they produce, which practices are too harmful, and which are harm-efficient. These inquiries are essential to ensuring that the benefits of policing are worth the costs it imposes. Second, scholars should explore the full “law of the police,” the web of interacting federal, state, and local laws that govern the police and police departments. Presently, for example, courts tailor their interpretation of § 1983 and the exclusionary rule to encourage changes in police behavior, yet civil service law, collective bargaining law, and federal and state employment discrimination law simultaneously discourage the same reforms, a phenomenon ignored by the academy. Third, scholars should analyze the capacities and incentives of non-judicial local, state, and federal institutions to contribute to a regulatory regime capable of intelligently choosing and efficiently promoting the best ends of policing. This agenda offers a path for moving beyond constitutional criminal procedure toward a legal regime that promotes policing that is both effective and protective of individual freedom.

Disinvestment in the Petroleum and Mining Sector: A Critical Analysis

Rustam Singh Thakur

Hidayatullah National Law University


The previous decade, which ushered in the new economic policy tailored towards liberalisation, saw a momentous shift in the policy towards government owned and controlled enterprises popularly known as Public Sector Undertakings [hereinafter PSUs]. The earlier protectionist regime gave way to a scenario wherein the State, realising the need for withdrawing from economic activities, began handing over the control of these PSUs to private bidders. This process of deregulation through the mechanism of disinvestments has brought to the fore several questions as to its legal validity vis-à-vis safeguarding the constitutional credo of socialism and the vision of our founding fathers to ensure state control of key economic sectors. Lately, the process of disinvestments has been extended to crucial sectors of the economy such as the petroleum and mining sector and thus is likely to have an impact on the lives of millions of people.

Be that as it may, the objective of this paper is limited to a technical examination of the constitutional validity of the disinvestments process in the petroleum and mining sector and not to weigh the pros and cons of the process. This assessment shall be made at three levels. Firstly, in Part I the paper seek to examine the scope of the powers of the higher judiciary to adjudicate upon the executive policy decisions in general and in particular to set limits, if any, to the tide in favour of disinvestments. Secondly, in Part II the paper attempts to analyse the constitutionality of the process of disinvestment on the anvil of socialism, which appears in the preamble to the Constitution as one of its cherished ideals. The process is examined in light of the meaning of the term socialism as interpreted by the Supreme Court so as to gauge the extent to which private enterprise can be allowed in the Indian economy as per the Constitutional scheme. In Part III we shall assess the constitutionality of disinvestments in these crucial sectors in the background of the right to life and the right to subsidized oil and gas. Part IV concludes the discussion and seeks to provide an insight into whether PSUs in the petroleum and mining sectors can be disinvested.

Boumediene, Munaf, and the Supreme Court's Misreading of the Insular Cases

Andrew Kent

Fordham University - School of Law

Iowa Law Review, Vol. 97, No. 101, 2011


In 2008, the Supreme Court embraced both global constitutionalism - the view that the Constitution provides judicially enforceable rights to non-citizens outside the sovereign territory of the United States - and what I call human-rights universalism - the view that the Constitution protects military enemies during armed conflict. Boumediene v. Bush found a constitutional right to habeas corpus for non-citizens detained as enemy combatants at the Guantanamo Bay naval base in Cuba, while Munaf v. Geren - decided the same day as Boumediene and involving U.S. citizens detained in Iraq during the war there - hinted that the Due Process Clause might be a limit on the U.S. military’s ability to cooperate in a foreign nation on security detention matters during an armed conflict. In both Boumediene and Munaf, the Court reached back for supportive precedents to an earlier era of U.S. empire: the period of territorial expansion and military interventions following the Spanish-American War of 1898. The Court then decided important cases about the legality of U.S. military and civil activities in the newly annexed islands of Puerto Rico, Hawaii, and the Philippines, and in Cuba, where the United States was conducting its first humanitarian intervention. A handful of the most famous decisions are known as the Insular Cases - "insular" because the cases concerned U.S. activities in these islands. In 2008, the Court relied substantially on a few Insular Cases to sketch a vision of a global Constitution protecting rights around the world, even for military enemies. But in so relying on the Insular Cases, the Court in 2008 erred. Little that it wrote about the Insular Cases was correct - as to law or fact. The Court in 2008 misunderstood that the Insular Cases were highly relevant to contemporary legal disputes precisely because they reject global constitutionalism and human-rights universalism. In other words, the Insular Cases, properly understood, mean literally the opposite of what Boumediene claimed. The 2008 Court demonstrably misread the few Insular Cases it discussed, failed to consider many more Insular Cases that were on point, and misconstrued key historical facts regarding the U.S. intervention in Cuba and acquisition of the Guantanamo Bay naval facility. The Article concludes that Boumediene was wrongly decided and should be overruled.

'Constitutional Governance and Rule of Law'

Mandobi Chowdhuri and Shayan Ghosh

Kiit Law School


“Be you ever so high, the law is above you” - Lord Hailsham

“Rule of Law” forms the supreme manifestation in human civilization with eternal values of constitutionalism, inherently attributed to democracy and good governance. Constitutional Law mandates through its doctrinaire provisions and fundamental obligations with the conception of equality before law, recognized stricto sensu. Rule of law involves a sense of supremacy and predominance aspiring for the spirit of legality with provisions of fairness and reasonableness, respecting basic human rights irrespective of their status in society by imposition of limitations on the Government. This rule is like a golden thread in the Constitution which ensures supremacy of law over the society. Rule of law is the cardinal principle, forming the basic structure for constitutional governance in the country. The prerequisites of this principle are to safeguard the fundamental liberties of humans in a free society for establishing his legitimate aspirations and self-esteem. The dogma of Rule of law symbolizes that Law is supreme authority just like the provisions of the Constitution, the paramount law, when abrogated is pro tanto void. The judicial control had constitutional prerogative to act within the scope, enunciating the rule of law by safeguarding its life and spirit through revolutionary decisions for restricting the abuse of legal powers for protecting a society along with arbitrary decisions from tyrannical rule. The principle is therefore a sentinel of ‘the voice of justice’ operating at all stages of constitutional provisions.

Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Judicial Review

Richard E. Levy

University of Kansas - School of Law

Administrative Law Review, Vol. 58, pp. 499, 2006


This is the second of two articles developing a “standards-based” approach to the rule of law in the context of administrative decisions concerning government benefits. We base our standards-based theory on two core principles. First, the rule of law attaches whenever government officials make decisions involving the application of legal standards - and hence the rule of law safeguards of due process and judicial review attach as well. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and control discretion. Because the availability of judicial review is tied to the existence of standards and the Constitution generally requires Congress to provide standards, it follows that Article III judicial review of administrative action is generally required to promote agency compliance with the rule of law.

In a previous Article in the Administrative Law Review, Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process, 57 Admin. L. Rev. 107 (2005) we criticized the Court’s current entitlement approach to procedural due process in government benefit cases. In the government benefit context, that approach leaves essential procedural safeguards, including notice and the right to be heard, contingent on legislative discretion. We argued that the current approach is the product of historical misunderstandings and doctrinal missteps, and we advanced the standards-based approach to the rule of law as a means of bringing coherence to due process doctrine and securing due process protections for government benefits. In this article, we offer a similar critique of the current doctrine concerning judicial review of government benefits, arguing that it too is the product of historical misunderstandings and doctrinal missteps and that a standards-based approach to judicial review would provide a superior approach to this fundamental constitutional issue.

Thailand’S Elusive Quest for a Workable Constitution, 1997–2007

Bjoern Dressel

Australian National University (ANU) - Crawford School of Economics and Government

Contemporary Southeast Asia, Vol. 31, No. 2, pp. 296-325, 2009


The “People’s Constitution” drafted in 1997 was seen as a watershed event in Thai constitutional history due to the breadth and depth of its reforms. Yet just ten years later, in August 2007, a new Constitution was promulgated, the 18th since Thailand became a constitutional monarchy in 1932.

The latest version followed the ouster in September 2006 of Prime Minister Thaksin Shinawatra in a military coup. This article examines the main differences between the 1997 and 2007 versions of the Constitution and how these changes relate to the current unrest in Thailand. The analysis suggests that Thailand’s current instability is best understood in terms of how social struggles over access to power played out in constitutional choices. Though Thailand’s urban elites and middle class had driven the drafting of the earlier Constitution, when the populist leadership it produced threatened their interests they were quick to support the traditional military and royal networks in ousting the elected government and replace the People’s Constitution with one that is deliberately less democratic. Yet, because the drafting process failed to generate support beyond narrow elite circles, and the new institutional arrangements no longer provide the inclusive governance Thai people have come to expect, the new Constitution has generated tensions that suggest Thailand is unlikely to experience stability any time soon.

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