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The turn to identity is reshaping federalism. Opposition to the policies of the Trump administration, from the travel ban to sanctuary cities and the rollback of environmental protections, has led progressives to explore more fluid and contingent forms of state identity. Conservatives too have sought to shift federalism away from the jurisdictional focus on limited and enumerated powers and have argued for a revival of the political safeguards of federalism, including state-based identities. This Article draws on comparative law to study identity as a political safeguard of federalism and its transformation from constitutional discourse to interpretative processes and, eventually, constitutional doctrine. The experience of the European Union, where identity federalism also benefits from a textual anchor, reveals some of the complexities of this process. As an eminently vague concept, identity leaves too much room for judicial discretion and leads to unsolvable conflicts among courts as well as between courts and other branches. Like the old sovereignty-based approaches, identity encourages judges to draw bright lines, resurrects jurisdictional conflicts, and discourages cooperation and compromise. In the age of populism, identity federalism draws courts into new and particularly concerning forms of polarization.

Scholarly consensus sees EU supremacy as "necessarily bidimensional": the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law. I argue that this view of bidimensional supremacy is conceptually flawed and descriptively inaccurate. On the conceptual side, I identify the fallacy of symmetry (the idea that national and supranational perspectives on supremacy are similar in nature and equally reductionist), the fallacy of selection (the view that bidimensionalism alone can overcome what it perceives as an inevitable subjective bias in the choice between national and supranational supremacy claims), and the fallacy of construction (an originally shared popular sovereignty theory, which turns out to be riddled with biases that disrupt the equilibrium within the internally divided sovereign). On the interpretative side, I suggest that the empirical evidence in support of bidimensional supremacy is weaker than it is generally assumed. I then offer an interpretation of the PSPP judgment of the German Federal Constitutional Court, which holds a judgment of the Court of Justice of the European Union to be ultra vires, unlawful and thus non-binding. PSPP presents a problem of German origins and cast, rather than one stemming from the inner structure of EU constitutionalism. At most, PSPP represents a contingent, rather than necessary, and thus unexceptional instance of bidimensional supremacy.

Jürgen Habermas's influential account of the transnationalization of democracy is typically seen as a bold attempt to articulate the political-philosophical foundations of European integration. Habermas posits an identity split between individuals as citizens of their nation states and (the same) individuals as members of the future European Union. According to the dual sovereignty thesis, nation states and the EU are co-original and co-determinate. I challenge this conception on two grounds. First, split identity is a source of fragmentation that subverts the transnationalization of democracy. It would be irrational for EU citizens to partake in a project that empowers states to undermine European unification. Second, Habermas misinterprets European constitutional doctrine. The doctrines and practice of European constitutionalism do not provide support for the dual sovereignty thesis. In reality, European constitutionalism calls for a bolder jurisprudential account of European unification than Habermas's concern with preserving the role of constitutional nation-states can provide.

It has become a standard critique of European integration that the upward transfer of sovereignty in market-related matters leads to the fragmentation of statehood between the supranational, European level and the largely incapacitated nation-states that retain jurisdiction over social and distributive policies. My article takes up this critique in the elaborate version of one of Germany's leading post-war constitutional theorists, Ernst-Wolfgang Böckenförde, whose approach has been influential in how German constitutionalism relates to the project of European unification. In this account, vertical integration uses law to sever economics from democratic politics, fragments the concern for the common good of citizens and undermines the unity of statehood. I contrast this account to instances of horizontal fragmentation of statehood, such as those underway in member-states such as Hungary or Poland where the nation state's constitutional structures are coming undone at the hands of authoritarian populists. The European Union's role of defending the rule of law within its constitutive states seeks to restore their normative integrity and, as such, is best understood as a role of vertical de-fragmentation of political and constitutional transformations at the domestic level. The question if statehood can be established at the European level gains greater urgency and complexity in light of these developments.

This paper analyzes the constitutional events in the summer of 2012 when Romania experienced the deepest constitutional crisis in the country's post-communist history. It discusses the implications of these events for semi-presidentialism, a regime that splits executive power between the president and the prime minister, and which has become a popular choice for constitutional design in Europe and around the world. I ask how constitutional democracies that are still at a relatively early stage of political maturity can handle the pressures of ideological splits within the executive power. Is semi-presidentialism a good choice of regime for societies in transition to constitutional democracy? The article also approaches the crisis from the perspective of the European Union. After describing its complex role in the unfolding of the Romanian crisis, I ask about the intervention tools—legal and/or political—available to the Union in the event that one of its member states is at the brink of sliding into authoritarianism.

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.

I begin with three premises: First, the relevance for any polity of the exercises in self-government of other political communities, as encoded in their constitutional laws and cultures, is not self evident and must therefore be justified. Second, that justification must place domestic and foreign law within a unitary framework by reference to which the comparativist's choices can be defended. Third, no project of comparative constitutional law, and perhaps comparative law generally, can withstand scrutiny unless it articulates, or it signs on to some articulation, of such a framework. By placing comparative constitutional law within the larger constitutional democratic project of government by law, Professor Frank Michelman's work gives us a framework for how the constitutional mind can approach — or "go visiting," as Hannah Arendt put it — the experiments in collective self-determination of other free communities of equals. My Provocation explores that framework.

This Article is a comparative study of disability regulations in the European Union and the United States over the past four decades. It explores how a conception of the relationship between illness, impairment and discrimination became a source of transformative insights that led to new regulatory regimes for persons with disability but also hampered the judicial enforcement of these regimes in both jurisdictions. The main transformative insight is the shift in understanding the cause of disability from the individual's medical condition to the larger social environment. The obstacle is the radical nature of this shift, and specifically its effect of leaving the concept of medical impairment under-theorized. Without guidance on how to interpret pervasive statutory references to medical impairments, judges downplayed the transformative insight and retreated into the familiar territory of narrow, medicalized interpretations of disability. The descriptive part of the Article uses social systems theory to present the development of disability law regimes in the EU and the US. According to this theory, social systems are structurally autonomous systems that, like cells, translate into their unique "code" the information they receive from the outside environment. Applied to disability reform, the social model plays the role of the "normative impulse" that becomes translated into the "code" of different (legal) systems. The model was first theorized in the U.K. but it was in the U.S. that it reached its highest political expression when the legal status of persons with disabilities changed from passive "objects of rehabilitation and cure" to right holders entitled to make demands on social institutions. Under the influence of a rights-centered legal and political culture, the American system translated the social model into antidiscrimination "code." Transnational social movements, which had previously been largely unsuccessful at the national level in Europe, used the rights-centered version of the social model as inspiration for legislation at the EU supranational level. This influence took the form of specific legal transplants in disability regimes, such as a duty of employers to provide reasonable accommodation to persons with disabilities, as well as a larger antidiscrimination approach to justiciable rights. However, the European code required that, in the course of implementing the model, rights be supplemented with broader welfare and social policies. The social model has been again on the move over the past few years, this time from the EU toward the US. The European-style comprehensive approach has become a source of inspiration for American scholars and activists who are advocating a move in the U.S. beyond a rights-only paradigm to a more holistic approach. An essential part of the struggle for recognition of persons with disabilities is the judicial interpretation and application of disability statutes. A study of judicial decisions in the US and the EU finds that narrow, medicalized judicial interpretations of disability are common to both jurisdictions. Why do courts remain tied to the medicalized understanding of disability, despite the legislative shift toward the social model? Is there a common explanation for its survival in the U.S. and the EU, despite the existence of different background conceptions of rights, the role of the state, and the proper institutional role of courts? The Article finds available answers helpful but insufficient to explain the staying power of the medicalized approach in judicial definitions of disability. It then turns to the social model in search for the missing explanation. The starting point of the analysis is the conceptionalization of medical impairments. Despite reference to medical impairment in legal definitions of disability, this concept has remained largely under-theorized. I suggest that the explanation has to do with the attempt by the disability rights movement to de-link disability from illness as a precondition for building a strong political consciousness for its base. In this context, analogies between impairments and illness were perceived as legitimizing medical expertise and thus perpetuating socially disabling assumptions about the standard of "normality." The de-linking distorted the translation of the insights of the social model into legal claims in both jurisdictions studied here. It had the effect of alienating judges who needed guidance on how to interpret and apply disability statutes. Without sufficient help in the uncharted waters of the discrimination-centered social model, judges sought to craft manageable standards and filter out what they perceived as abusive claims by (re)turning to a focus on the medical nature, as compared to the social effects, of impairments. The resilience of the medicalized approaches to disability in judicial interpretations, as a phenomenon common to both the US and the EU, is thus partly the consequence of a convergence between the reaction of courts facing institutional, administrability concerns, on the one hand, and the strategy to unify the base of the disability rights movement, on the other hand. I offer this as an explanation, not a justification, of the judiciary's narrow interpretations. The move from explanatory to normative approaches rests on broader conceptions of the judicial role. In one such conception, which the Article articulates and defends, the judiciary's narrow interpretations represent a failure to respond appropriately to the claims to recognition of persons with disabilities.

I. Ideas as catalysts: Rights and the struggle for recognition of persons with disabilities II. Strategic and communicative components of rights-claims III. Two conceptions of responsiveness: An excursus into constitutional theory Conclusion: The not-so-strange alchemy of new governance and "old government"

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens' control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is partly a function of that order's responsiveness to the claims of citizens for institutional recognition and/or action (or inaction); judgments of legitimacy are, in part, judgments about normative responsiveness; 2) Distortion effects inevitably occur when citizens formulate their claims and when institutions translate and process them; in a constitutional democracy, such effects widen when impermissible social asymmetries of freedom and equality become ossified in constitutional doctrine and discourse; 3) Political legitimacy and the promise of self-government depend on the capacity of the constitutional system to build self-corrective mechanisms as means for preserving its responsiveness capacity. Legitimacy judgments are not binary judgments, but judgments of degree that can fine-tune to the existence and efficiency of such mechanisms; 4) Openness to the experiences in self-government of other political communities (for instance, by using foreign law in constitutional interpretation) is a self-correcting mechanism – it can open access to a community's own processes of self-government, and it should open access to its institutions. The paper presents these claims as elements of a cosmopolitan political philosophy of constitutional law.

This Article makes the case for a discursive turn in European law. Contrary to the prevailing view, politicizing the judicial discourse of the European Court of Justice would strengthen, more than undermine, the Court's authority. This argument is made with reference to the ECJ's reason giving practice, specifically to the relation between the form and content of its decisions. Allowing its members to write separate opinions will enable the Court to redefine its role on the European institutional and political stages The Article then answers doctrinal, institutional and juriscultural objections to its central thesis.

Hot Topics interviewed BC Law Dean Vincent Rougeau and Law Professor and Clough Center Director Vlad Perju in November 2012 about the lecture series on jurisprudence at the BC Clough Center for the Study of Constitutional Democracy. A wide-ranging discussion ensued. This is a transcript of the entire conversation.