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Abstract Notwithstanding the political origins of constitutionalism in the west and the leading role played by the United States in the creation of the new global order after WWII, this origin of the global constitutional project does not undermine the claims to universality underlying it. After laying out a basic account of some core theoretical premises guiding global constitutionalism, the article presents a series of genealogical reflections, in which the basic project of global constitutionalism is affirmed, even as some of its concrete features and their connection to great power domination - and US domination more specifically - is critically highlighted. It concludes that the core challenge that global constitutionalism faces is not the shift of power away from the west to other geographical areas, such as Asia and South America. Its core challenge are structural inadequacies that are glossed over complacently and self-interestedly by powerful actors claiming to speak in its name and discrediting its basic ideas among those who suffer as a result.

Mattias Kumm puts forward the basic structure of an argument for a normative theory of public reason–based constitutionalism to determine what it would require if the law has the authority it claims to have but only if it is justifiable in terms of public reason and if constitutions seek to constitutionalize as a condition for legal validity this standard. Kumm contrasts public reason–based understandings of constitutionalism with conventionalist and democratic voluntarist conceptions of constitutionalism. He then discusses what a public reason–based understanding of constitutionalism implies for the foundations, structure, and interpretation of constitutions. Kumm concludes that even though the demands for establishing legitimate authority within a public reason–based framework are ambitious, public reason–based constitutionalism is the heir of the American and French revolutions, and dominant structures of prevailing constitutional practice in liberal democracies can be best explained and justified within such a framework.

Constitutional courts, like legislatures, are representative institutions. But in virtue of what are they representative and what are the variables that might raise their level of representativeness, without unduly undermining the impartiality and independence that is required for courts to successfully play this role? The chapter distinguishes between four complementary dimensions of representativeness: volitional, identitarian, argumentative, and vicarious. I argue that it is not desirable to increase courts' volitional representativeness (strengthening the electoral link between judges and the people). Even though identitarian representativeness is important in contexts of historical practices of exclusion, the focus of constitutional designers should not be limited to these factors. Other normatively salient variables that should be the focus of constitutional designers include argumentative representativeness, implicating questions of methodology, and style and structure of judicial opinions. Furthermore, vicarious representativeness, which concerns the constitutional embeddedness of judicial institutions in the political system and, more specifically, the mechanisms that allow political branches to challenge decisions of courts should be among the factors on which attention is focused.

Concluding the first part, Mattias Kumm retraces the history of Global Constitutionalism, explaining that narratives are very much part and parcel of the history of western legal and political thought and have been connected to periods of western hegemony. With such a historical background, can Global Constitutionalism be sufficiently civilizationally and culturally inclusive? Can it be relevant when western hegemony seems to be receding and the balance of power shifting in favour of other regions? After clarifying concepts, the chapter provides some basic ideas toward an affirmative genealogy of Global Constitutionalism. Drawing on examples from Asian and European history, it shows first that universal categories and their meaning have often been shaped by contestations between different actors, not simply dictated by "the west". It shows also that anti-constitutionalist claims, often made in the name of national tradition, culture, or sovereignty, have served as a cover for the continuation of practices of domination by national elites and as a shield for these from challenges by the oppressed. Third, the chapter shows that to the extent that international legal structures perpetuate forms of domination, constitutionalism has demonstrated the internal resources to criticize these and to guide efforts of progressive development and reform.

The debate about the legitimacy of judicial review has arguably been misframed. The question is not whether judicial review can be justified, but how judicial institutions need to be designed and how the relationship between the judicial and the legislative branches must be structured in order for it to be legitimate. After briefly describing the point of judicial review and introducing a normative standard for its legitimate institutionalization, the article analyzes a number of variables that, taken together, determine whether or not such standard is met. A third part briefly illustrates the usefulness of the established framework by analyzing and assessing the institutionalization of judicial review in the US and in the UK. As will become clear, both are problematic outlier cases: In the US the institutional position of the Supreme Court is too strong in its relationship the legislature, effectively enabling juristocracy. In the UK the position of the courts is too weak, effectively enabling electoral authoritarianism. ; debate sobre a legitimidade da justiça constitucional tem sido porventura mal colocado. A questão não é a de saber se é possível legitimar a justiça constitucional, mas a de como arquitetar as instituições judiciais e como estruturar as relações entre os poderes judicial e legislativo de forma a assegurar essa legitimidade. Após uma breve referência ao valor da justiça constitucional e articulação de um parâmetro normativo para sua institucionalização legítima, o artigo percorre um conjunto de variáveis que determinam a observância ou não desse parâmetro. A terceira parte ilustra sucintamente a utilidade deste modelo através da análise e do exame da institucionalização da justiça constitucional nos Estados Unidos e no Reino Unido. Como se tornará claro no decurso dessa análise, ambos consubstanciam casos peculiares e problemáticos: nos Estados Unidos a posição institucional do Supremo Tribunal é demasiado forte na sua relação com o poder legislativo, o que permite a implantação de uma juristocracia. No Reino Unido a posição dos tribunais é demasiado débil, o que permite a implantação de um autoritarismo eleitoral.

The debate about the legitimacy of judicial review has arguably been misframed. The question is not whether judicial review can be justified, but how judicial institutions need to be designed and how the relationship between the judicial and the legislative branches must be structured in order for it to be legitimate. After briefly describing the point of judicial review and introducing a normative standard for its legitimate institutionalization, the article analyzes a number of variables that, taken together, determine whether or not such standard is met. A third part briefly illustrates the usefulness of the established framework by analyzing and assessing the institutionalization of judicial review in the US and in the UK. As will become clear, both are problematic outlier cases: In the US the institutional position of the Supreme Court is too strong in its relationship the legislature, effectively enabling juristocracy. In the UK the position of the courts is too weak, effectively enabling electoral authoritarianism. ; O debate sobre a legitimidade da justiça constitucional tem sido porventura mal colocado. A questão não é a de saber se é possível legitimar a justiça constitucional, mas a de como arquitetar as instituições judiciais e como estruturar as relações entre os poderes judicial e legislativo de forma a assegurar essa legitimidade. Após uma breve referência ao valor da justiça constitucional e articulação de um parâmetro normativo para sua institucionalização legítima, o artigo percorre um conjunto de variáveis que determinam a observância ou não desse parâmetro. A terceira parte ilustra sucintamente a utilidade deste modelo através da análise e do exame da institucionalização da justiça constitucional nos Estados Unidos e no Reino Unido. Como se tornará claro no decurso dessa análise, ambos consubstanciam casos peculiares e problemáticos: nos Estados Unidos a posição institucional do Supremo Tribunal é demasiado forte na sua relação com o poder legislativo, o que permite a implantação de uma juristocracia. No Reino Unido a posição dos tribunais é demasiado débil, o que permite a implantação de um autoritarismo eleitoral.

The central cause for the crisis in Europe is not undisciplined spending by profligate states, but the asymmetric structural symbiosis between states and banks. Under the current European regime states are lenders of last resort for banks and banks are lenders of last resort for states. That symbiotic relationship must be loosened. Banks must be regulated in a way that ensures that the financial sector does not depend on massive taxpayer financed transfers. The ECB in cooperation with the ESM must function as a lender of last resort for states. Furthermore the public costs of bank-bailouts are to a significant extent the result of genuinely European risks, for which it would be appropriate to hold the European Union as a whole accountable. The mechanism through which to organize this European responsibility should not be inter-state transfer mechanisms, such as those foreseen by the ESM. Instead this money should be paid for by genuinely European funds, raised by European taxes or levies. And given the significant role of the Commission in monitoring national budgets, the case for having the European elections turn into a genuine competition for a European government has gotten even stronger.

AbstractThis comment explores how experimentalist governance is connected to wider constitutional questions and makes two claims. First, there are good reasons to believe that experimentalist governance can only flourish in a world where the precepts of liberal democratic constitutionalism have been widely accepted and institutionalized. Experimentalist governance is part and parcel of the world of liberal democratic constitutionalism. Second, it is not only governance in Europe that can be described in experimentalist terms. The concept is also useful to describe the dynamics of European constitutionalism.

The institutionalization of a rights-based proportionality review shares a number of salient features and puzzles with the practice of contestation that the Socrates of the early Platonic dialogues became famous for. Understanding the point of Socratic contestation, and its role in a democratic polity, is also the key to understanding the point of proportionality based rights review. To begin with, when judges decide cases within the proportionality framework they do not primarily interpret authority. They assess reasons. Not surprisingly, they, like Socrates, have been prone to the charge that they offend the values and traditions of the community.The article discusses four types of pathologies that occasionally infect democratic decision-making that rights-based proportionality review is particularly suited to identify. But more basic and equally important is a second kind of justification: Proportionality-based judicial review institutionalizes a right to contest the acts of public authorities and demand a public reasons-based justification. Having a legal remedy that allows for the contestation of acts by public authorities before an impartial and independent court and demanding its justification in terms of public reason is as basic a commitment of liberal democracy as the right to vote. The real question is not whether judicial review is democratically legitimate, but how judicial institutions ought to be structured to best serve their democracy-enhancing and rights protecting purpose. If Socrates was right to insist that the practice of contestation he engaged in deserves the highest praise in a democratic polity, it is equally true that a well structured and appropriately embedded court engaged in rights based proportionality review deserves to be embraced as a vital element of liberal constitutional democracy.

The point of judicial review in Europe is to legally institutionalize a practice of Socratic contestation. Socratic contestation refers to the practice of critically engaging authorities, in order to assess whether the claims they make are based on good reasons. This practice, described most vividly in the early Platonic dialogues, shares many features with judicial review and raises some of the same questions. For one, neither is legalist. In constitutional rights law, the proportionality requirement, which is a defining feature of what I call the Rationalist Human Rights Paradigm (RHRP), requires open engagement with questions of policy and justice. Yet the reasoning courts engage, like Socratic elenctic reasoning, is relatively pedestrian and craftsmen-like and does not generally require the talents of philosopher kings or Herculean demi-gods. Socrates, who claimed to know nothing and Judges, who only claim to know the law, in practice turn out to be quite effective at uncovering basic mistakes in the justifications advanced by the party whose claim is at issue. Legally institutionalised Socratic contestation is well suited to address a wide range of pathologies that occasionally infest the political process, ranging from 1. complacent thoughtlessness brought about by habit, convention or tradition, 2. deciding on grounds that are inappropriate in a liberal democracy or 3. succumbing to ideology. Furthermore Socratic contestation is a practice that gives institutional expression to the idea that all legitimate authority depends on being grounded in public reasons, that is, justifiable to others on grounds they might reasonably accept. Judicial review as Socratic contestation is attractive both because it leads to better outcomes and because it reflects deep commitments of liberal democracy. Socrates claimed that a polity that takes pride in self-government, should accord him a place of honor , instead of trying to silence him. The same is true for legally institutionalised Socratic contestation.