A Constitutional Perspective on Institutional Neutrality
In: Revisiting The Kalven Report: The University's Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds. Johns Hopkins Press, Forthcoming).
In: Revisiting The Kalven Report: The University's Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds. Johns Hopkins Press, Forthcoming).
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In: Journal of democracy
ISSN: 1086-3214
World Affairs Online
In: Journal of democracy, Band 34, Heft 4, S. 36-50
ISSN: 1086-3214
Abstract: Recent decades have seen a sharp rise in constitutional provisions regulating core aspects of democracy, including the rules about parties, voting, and elections. The trend is apparent in both democracies and nondemocracies, although democracies tend to constitutionalize slightly more matters. Constitutionalization can help democracy by tying the hands of politicians. Looking at cross-national data, we find that constitutionalizing democracy is correlated with higher levels of democracy. However, some rules have the potential to undermine democracy, particularly in contexts where the military plays a major role in politics. The essay illustrates these dynamics with the case studies of Kenya and Thailand.
In: Global constitutionalism: human rights, democracy and the rule of law, S. 1-10
ISSN: 2045-3825
Abstract
Chile's experience with its Constitutional Convention from 2021 to 2022 sheds light on an important issue for comparative reflection: the role of procedures in constitution-making processes. The Constitutional Convention was bound by procedures that were both externally imposed and internally created. Our assessment is that, while some procedures improved representation and deliberation, the most important decision-making procedures were pernicious to the process. We argue that looking at procedures is fundamental when analysing constitutional processes, as the rules that bind rule-making processes can significantly impact not only their functioning, but also their outcomes.
In: Northwestern Public Law Research Paper No. 23-29
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In: Journal of democracy, Band 33, Heft 4, S. 160-163
ISSN: 1086-3214
In: Constitution Makers on Constitution Making: New Cases, edited by Sumit Bisarya and Tom Ginsburg (Cambridge University Press, 2022)
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In: World politics: a quarterly journal of international relations, Band 74, Heft 3, S. 327-366
ISSN: 1086-3338
abstractThe Universal Declaration of Human Rights (UDHR) is thought to have shaped constitutions profoundly since its adoption in 1948. The authors identify two empirical implications that should follow from such influence. First, UDHR content should be reflected in subsequent national constitutions. Second, such reflections should bear the particular marks of the UDHR itself, not those of the postwar zeitgeist more broadly. The authors examine the historical evidence at various levels to identify and untangle the UDHR's impact. In a macro analysis, they leverage an original data set on the content of constitutions since 1789. They explore historical patterns in the creation and spread of rights, and test whether 1948 exhibits a noticeable disruption in rights provision. The authors build a multivariate model that predicts rights provision with constitution- and rights-level covariates. To gain further analytic leverage, they unearth the process that produced the UDHR and identify plausible alternative formulations evident in a set of discarded proposals. The authors further test the plausibility of UDHR influence by searching for direct references to the document in subsequent constitutional texts and constitutional proceedings. The evidence suggests that the UDHR significantly accelerated the adoption of a particular set of constitutional rights.
In: Law & ethics of human rights, Band 16, Heft 2, S. 217-244
ISSN: 1938-2545
Abstract
This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter's approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion to a prior order. It also shows that innovations tend to come from the periphery rather than the global core of the field. One of the sources of "mixed" constitutions is precisely such innovations, which then form raw material for further mixing.
In: U of Chicago, Public Law Working Paper No. 804
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In: Ethics & international affairs, Band 36, Heft 4, S. 437-453
ISSN: 1747-7093
AbstractHow does a democracy that has survived a close brush with authoritarianism start to recreate conditions of meaningful democratic political competition? What steps are to be taken, and in what order? Certain lessons can be gleaned from comparative experience with the challenges of "front-sliding"—that is, the process of rebuilding the necessary political, legal, epistemic, and sociological components of democracy. This essay maps out those challenges, examines the distinctive and difficult question of punishing individuals who have been drivers of democratic backsliding, and reflects on how to sequence different elements of front-sliding.
In: Ethics & international affairs, Band 36, Heft 4, S. 409-504
ISSN: 1747-7093
World Affairs Online
In: Is the International Legal Order Unraveling? David L. Sloss ed., Oxford University Press, Forthcoming
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In: American journal of international law: AJIL, Band 115, Heft 4, S. 777-780
ISSN: 2161-7953
In: Cambridge Companion to the International Court of Justice, Forthcoming
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