The impact of EU membership on the UK constitution has been profound. In the Miller (Article 50) case, the Supreme Court described the effect of the European Communities Act 1972 (ECA) – the means by which EU membership was given effect within the UK – as being unprecedented in constitutional terms. Not only did it provide for a new source of law, and a new constitutional process for making law in the UK, it also fundamentally changed the UK's system of government and the way in which we think about the location and exercise of public power.
This is the first event of the Transsystemic Law Series ; The University of Victoria follows a transsystemic method of teaching and thinking about law to educate across different legal orders, emphasize the relevance of Indigenous legal traditions to Canada, and contribute to understandings of law that are different from long-established legal views. Join the second presentation of our Transsystemic Law Series. Professor John Borrows will explain why a transsystemic approach to constitutional law contributes not only to understanding how different communities organize as distinctive political units, but also to giving Indigenous legal traditions equal footing with common and civil law traditions in Canada. ; UVic Graduate Student Law & Society Research Group ; Faculty ; Unreviewed
This article draws on the tradition of cosmopolitanism to offer a normative framework for the integration of democratic constitutional systems. The laterally conducted constitutional integration, which takes place outside formal institutional settings, remains under-theorized despite its transformative effect on constitutional law around the world. This article uses Kant's tripartite system of public law as presented in Perpetual Peace – ius civitatis (domestic political right), ius gentium (international political right), ius cosmopoliticum (cosmopolitan right) – to explain, defend and steer ongoing phenomena of constitutional integration. By contrast to other scholarly accounts, which associate a cosmopolitan view to top-down approaches to institutional reform at the international level or to universal moral demands, my account takes domestic constitutionalism as both starting and end points. In this sense, I defend a bottom-up version of cosmopolitanism. Cosmopolitanism from the ground-up preserves the primacy of the domestic jurisdictions: each domestic constitutional order retains the filter of its own discourse and structures as it integrates and internalizes the experiences of other constitutional orders. Cosmopolitanism helps to understand ongoing phenomena of constitutional integration because it rejects methodological nationalism in constitutional analysis. It also justifies these phenomena by showing that cross-jurisdictional integration is compatible with the constitutional democratic commitment to self-government.
This chapter provides an overview of the emerging field of transnational constitutional law (TCL). Whilst questions of constitutional law are typically discussed in the context of a specific domestic legal setting, a salient strategy of TCL is to understand constitutional law and its values by placing them 'in context' with existing and evolving cultural norms and political, social and economic discourses and struggles. Drawing on socio-legal investigations into the relationships between law and non-law and the significance of legal pluralism, TCL considers what role constitutional law and its values might play in shaping and bringing about social and legal transformation within an emerging global economic order in which non-territorially confined spaces of struggle involve transnational actors and social formation dynamics. TCL thus emerges out of constitutional law in a transnational legal context. Based on Zumbansen's concept of Transnational Law (TL) as a methodological framework to study the Actors, Norms and Processes of legal formations in a global context, rather than positing TL as a distinct legal field, we examine transnational constitutional law phenomena in their social, political and economic contexts. This allows us to revisit and reassess well-known constitutional law concepts such as the rule of law, equality and access to justice in a new light, in particular where we confront – in this paper – legacies of these concepts in both the Global North and South. This engagement renders visible lived experiences of constitutional law and constitutionalism in local and transnational contexts, drawing attention to the growing number of those who have, through processes of globalisation, fallen out of, or were never made party to, the Western 'social contract'. We present TCL as emerging on two levels. On a macro level, studies of comparative constitutional law and post-colonial approaches to law shine light on processes of globalisation and financialization as they manifest themselves in conflictual dynamics within trade law, and international human rights law, with regard to civil, socio-economic and cultural rights. TCL also emerges on a micro level through careful ethnographic and anthropological studies that examine different forms of what Saskia Sassen persuasively coined "Expulsions", meaning struggles and resistance against different forms of expropriation, eviction or alienation, within volatile economic and political landscapes. Finally, our transnational critique of the 'rule of law' reflects our hope for a 'thick' and historically reflective RoL concept. In
Proportionality has been used as an analytical method in the constitutional jurisprudence of courts around the world, including in Australia. The method has not, however, been free from controversy. Since its first introduction into Australian constitutional law, there have been debates regarding the appropriateness of proportionality testing in this context.To date, these debates have been lacking in one important respect: they have not been sufficiently grounded in theory. In times when the global literature on the subject was relatively nascent and applications in comparative constitutional contexts sparse, the under-theorisation of Australian proportionality was understandable. This is no longer the case. The burgeoning international literature and jurisprudence in this field has in recent years generated a rich body of judicial and academic thought from which to elicit a properly theorised consideration of proportionality. Drawing on these resources, this thesis proposes a theoretical framework for proportionality. It uses this framework to explore a key question in the Australian context: when is proportionality an appropriate analytical tool in constitutional jurisprudence? In examining this question, the thesis considers the primary concerns regarding the appropriateness of proportionality in Australian constitutional law and how these might be addressed. It also makes principled suggestions for the development of Australian doctrine.
Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the countermajoritarian Constitution's provisions. Absent judicial review, the fundamental speed bumps to tyranny that the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the very political branches that the Constitution is designed to restrain will fully control the remedies to be issued. Thus, all the political branches need to do to avoid constitutional control is deny the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet neither constitutional scholars nor the Supreme Court have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope—indeed, the existence—of remedies to enforce constitutional dictates. This Article explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. It then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation, highlights the inadequacy of scholarly work in this area, and answers potential counterarguments. Finally, it applies this theory of constitutional remedies to the Supreme Court's implied remedies jurisprudence.
Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle's classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse--think of "Poor Joshua!"--but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discourses--text, history, structure, precedent, and consequences--that make constitutional law a distinctive form of politics. Normatively, appeals to emotion are most easily justified in opinions that seek to declare rather than apply law; in separate writings; when addressed to accepted subjects of constitutional argument rather than the ultimate outcome in the case; and when they arouse other-regarding rather than self-regarding emotions. A nuanced account of the proper place of pathetic argument in constitutional law is instrumental to understanding what it means to engage, and not to engage, in constitutional discourse.
Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle's classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse — think of "Poor Joshua!" — but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discourses — text, history, structure, precedent, and consequences — that make constitutional law a distinctive form of politics. Normatively, appeals to emotion are most easily justified in opinions that seek to declare rather than apply law; in separate writings; when addressed to accepted subjects of constitutional argument rather than the ultimate outcome in the case; and when they arouse other-regarding rather than self-regarding emotions. A nuanced account of the proper place of pathetic argument in constitutional law is instrumental to understanding what it means to engage, and not to engage, in constitutional discourse.
Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle's classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse-think of "Poor Joshua!"- but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discoursestext, history, structure, precedent, and consequences-that make constitutional law a distinctive form of politics. Normatively, appeals to emotion are most easily justified in opinions that seek to declare rather than apply law; in separate writings; when addressed to accepted subjects of constitutional argument rather than the ultimate outcome in the case; and when they arouse other-regarding rather than selfregarding emotions. A nuanced account of the proper place of pathetic argument in constitutional law is instrumental to understanding what it means to engage, and not to engage, in constitutional discourse.
Several of the Supreme Court's most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President's power to remove agency heads are disfavored because they reduce the President's accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances. There is just one problem with these claims. They are wrong—at least for the most part. To illustrate their error, I identify four conditions that must be satisfied in order for incumbents to be held accountable. Voters must (1) know about incumbents' records, (2) form judgments about them, (3) attribute responsibility for them, and (4) cast ballots based on these judgments and attributions. I then present extensive empirical evidence showing that these conditions typically are not met in the scenarios contemplated by the Court. The crux of the problem is that voters are less informed than the Court supposes, more likely to be biased by their partisan affiliations, and less apt to vote retrospectively than in some other way. Accountability thus does not rise in response to the Court's interventions—at least not much. The qualifiers, though, are important. If the Court's claims are mostly wrong, then they are partly right. If accountability does not rise much due to the Court's efforts, then it does go up a bit. These points are established by the same studies that document the general inadequacy of the Court's reasoning. With respect to certain voters in certain settings, accountability is influenced by presidential control over agencies, congressional delegation to agencies, federal commandeering of state governments, and regulation of campaign spending. That is why this Article ...
The article analyzes the process of constitutional law updating. However, we note that, of course, national law plays a significant role in direct law enforcement activities, but the role of global law is increasingly present. Changes on a global scale have affected constitutional law. This influence has a dual nature. Firstly, constitutional law as a branch of national law is changed and transformed in accordance with the recognized latest international legal standards, or implements positive foreign practice. We should note that today there is a number of social problems of a global nature, which can be solved only by international cooperation, including issues of counter-terrorism, security issues, legal regulation of relations in the information sphere and more. Therefore, the development of uniform mechanisms must be agreed at the national level, so they are implemented in the constitutional legal framework. The current trend of democratization of power relations is especially noted. It is noted that this does not automatically lead to the real rule of law, but the means of democratic transformation are introduced into the institutional mechanism of state power. Secondly, the changes affected constitutional law as a science and an academic discipline. Expansion of educational programs related to modern legal systems, comparative research, interpretation of foreign law, and knowledge in the field of constitutional law of foreign countries - an urgent requirement of modern legal science. Globalization as a modern general factor in the transformation of the entire legal reality is a catalyst for the development of the legal system, including constitutional law. The assertion of the principles of the rule of law, constitutionalism and humanism remain axiological determinants of the national law of civilized people. Legal globalization combines a system of national, international and even positive foreign processes, which in symbiosis leads to the renewal of constitutional law.
This essay reconsiders the transformation of colonial constitutionalism to Constitutional Law. The transformation of constitutional law does not map neatly onto the 1776 - 90 period. This essay argues that the transformation was less the result of the admittedly important invention of a written constitution than of three less apparent transformations. A first essential transformation in constitutionalism occurred long before 1776 when seventeenth-century colonists created a new conception of the written and published charter as the location of authority and liberties. A second essential transformation occurred only after 1790 when appeals in judicial cases began to be publicly reported in print, thereby creating a stable and analyzable body of law. A third essential transformation occurred in 1787 - but with implications not immediately appreciated. Privy Council review of colonial legislation ended and no similar review took its place, thus leaving the judiciary the sole arbiter of constitutional law. These three transformations created modern American constitutionalism - a law two centuries in the making.
Structural constitutional law regulates the workings of government and supplies the rules of the political game. Whether by design or by accident, these rules sometimes tilt the playing field for or against certain political factions – not just episodically, based on who holds power at a given moment, but systematically over time – in terms of electoral outcomes or policy objectives. In these instances, structural constitutional law is itself structurally biased. This Article identifies and begins to develop the concept of such structural biases, with a focus on biases affecting the major political parties. Recent years have witnessed a revival of political conflict over the basic terms of the U.S. constitutional order. We suggest that this phenomenon, and a large part of structural constitutional conflict in general, is best explained by the interaction between partisan polarization and structural bias, each of which can intensify the other. The Article also offers a typology of structural biases, keyed to the contemporary United States but potentially applicable to any system. To date, legal scholars have lagged social scientists in investigating the efficiency, distributional, and political effects of governance arrangements. The concept of structural bias, we aim to show, can help bridge this disciplinary gap and thereby advance the study of constitutional design and constitutional politics.
Taking a cue from Professor Laurence Tribe's decision to abandon the third edition of his constitutional law treatise, the organizers of this symposium have asked us to address whether constitutional law is in crisis. I am agnostic on that question, although I think that there has been a turn in the wrong direction. But if there is a crisis, I know who to blame. If constitutional law is in crisis, it is our fault. The legal academy has erased the distinction between law and politics, used its expertise for political advantage rather than for elucidation, and mis-educated a generation of lawyers. We thus should not be surprised if judges have, as Professor Ristroph suggests, lost their faith in the Constitution. We have led them into the wilderness.
The fundamental right to gender equality has played an important role in Germany's more recent constitutional history. The rulings of the Federal Constitutional Court (FCC, Bundesverfassungsgericht) and other courts have developed doctrinal standards that are relevant to anti-discrimination legislation overall. This article provides a brief history of gender equality in the German Basic Law (Grundgesetz) and its concretization in key Constitutional Court decisions from 1949 until today. A special emphasis is on the legal doctrine of non-discrimination and on the influence of feminist legal scholars. The article concludes with a discussion of affirmative action measures from the perspective of constitutional law.
