Showing papers on "Constitution published in 2005"

Governance and Politics of the Netherlands

Abstract: The Country and its Constitution - A Country of Minorities - Political Parties and the Party System - Citizens and the Political System - The Core Executive - Parliament - The Policy-Making Process - Multi-Level Governance - Social and Economic Policy - Foreign Policy - The Strengths and Weaknesses of Consensus Government

Democracy compromised : chiefs and the politics of the land in South Africa

Abstract: This book offers a historical analysis of the embattled structures of rural local governance in South Africa, with specific reference to the role of traditional authorities in Xhalanga in the Eastern Cape. More specifically, the book illustrates how at least in the Xhalanga district chieftainship was contested from the establishment of the district in 1865 to the advent of democracy in South Africa. Two related themes are addressed: the question of the survival of traditional authorities up to the postcolonial/apartheid era and the question of how traditional authorities derive their authority and legitimacy. The book shows that the survival of traditional authorities can be linked directly to their control of the land allocation process, rather than popular support. The issue of the legitimacy of traditional authorities, especially in a democracy, is investigated against the background of the tension in the 1993 Interim Constitution and the 1996 Constitution, which recognized the institution of traditional leadership. These constitutions, along with emerging post-1994 legislation, advocated a form of democracy that was based on the liberal principles of representation at all levels of government, including local government, while, at the same time, recognizing a hereditary institution of traditional leadership for rural residents. [ASC Leiden abstract].

Variations on a Theme

Abstract: The scholarly debate on the advantages and disadvantages of the two dominant democratic regime types—presidentialism and parliamentarism—gained prominence during the “third wave” of democratization. Discussions of the inherent perils of presidentialism and the unequivocally virtuous nature of parliamentarism were especially salient during the 1990s, but they remain important to this day. In the past few years, democratizing countries such as Afghanistan, East Timor, and Iraq have faced or are still facing tough choices as to regime constitution. Moreover, a number of established democracies, including Mexico and Taiwan, are currently debating whether or not to change their basic system of government. Most academic contributions to the regime-type debate have focused on the relative advantages and disadvantages of presidentialism and parliamentarism, and the consensus seems to adhere to Juan Linz’s judgment that, all else being equal, parliamentarism should be chosen above presidentialism. 1 That said, there are powerful counterarguments that properly crafted presidential regimes can be of advantage in certain countries. 2 In the presidentialism-versus-parliamentarism debate, analysis of semipresidential systems—which have both a directly elected president and a prime minister responsible to the legislature—has been notable for its near absence. Semipresidentialism has been and remains a very popular choice of government, especially for countries that democratized during or after the third wave; indeed, in the formerly communist countries of Central and Eastern Europe and the former Soviet Union Robert Elgie, Paddy Moriarty Professor of Government and International Studies at Dublin City University, Ireland, is coeditor of the journal French Politics. He is also editor of Semi-Presidentialism in Europe (1999) and Divided Government in Comparative Perspective (2001) and coeditor of Semi-Presidentialism Outside Europe (forthcoming).

Where Is Guantanamo

Abstract: This essay argues that Guantanamo lies at the heart of the American Empire. The legal status of the prisoners there must be understood in the context of an imperial history that dates back to the U.S. occupation of Cuba in 1898. This history explains how the U.S. Naval Station, Guantanamo Bay, Cuba, has become an ambiguous space, both inside and outside national and juridical borders and how this ambiguity reinforces the harsh penal regime. The essay argues that the legacies of U.S. imperialism inform key contemporary debates about Guantanamo: the question of national sovereignty, the codification of the prisoners as "enemy combatants," and the uncertainty about whether the U.S. Constitution holds sway there. Turning to the 2004 Supreme Court decision, Rasul v. Bush, the essay argues that the justices are not only interested in restraining executive power to bring Guantanamo within the rule of domestic law; they also show concern with the scope of U.S. power in the world and the extent to which the judiciary should accompany or limit U.S. military rule abroad. A close reading of the Supreme Court's decision and dissent shows that the logic and rhetoric of Rasul v. Bush rely on and perpetuate the imperial history the decision also elides. In concert other recent decisions about civil liberties and national security, Rasul v. Bush contributes to the global expansion of U.S. power by reworking the earlier history of imperial rule. The Court's legal decisions respond to the changing demands of empire today by creating new categories of persons before the law that extend far beyond Guantanamo Bay, Cuba.

Market and state: the perspective of constitutional political economy

Abstract: The paper approaches the ‘market versus state’ issue from the perspective of constitutional political economy, a research program that has been advanced as a principal alternative to traditional welfare economics and its perspective on the relation between market and state. Constitutional political economy looks at market and state as different kinds of social arenas in which people may realize mutual gains from voluntary exchange and cooperation. The working properties of these arenas depend on their respective constitutions, i.e. the rules of the game that define the constraints under which individuals are allowed, in either arena, to pursue their interests. It is argued that ‘improving’ markets means to adopt and to maintain an economic constitution that enhances consumer sovereignty, and that ‘improvement’ in the political arena means to adopt and to maintain constitutional rules that enhance citizen sovereignty.

Legitimacy and the constitution

Abstract: TABLE OF CONTENTS INTRODUCTION I. THREE CONCEPTS OF LEGITIMACY AND THEIR OBJECTS A. Legitimacy as a Legal Concept B. Legitimacy as a Sociological Concept C. Legitimacy as a Moral Concept D. An Aside on Legal Positivism and Natural Law E. The Objects of Legitimacy Judgments II. THE LEGITIMACY OF THE CONSTITUTION A. The Relationship Between the Constitution's Moral Legitimacy and Its Legal and Sociological Legitimacy B. Assessing Ideal and Minimal Moral Legitimacy C. What Is the Constitution? D. The Limits of Constitutional Legitimacy III. JUDICIAL LEGITIMACY UNDER THE CONSTITUTION A. Judicial Legitimacy as a Legal Concept 1. The Meaning of Claims of Legal Legitimacy and Illegitimacy 2. Standards for Assessing the Legal Legitimacy of Assertions of Judicial Power B. The Sociological Legitimacy of Judicial Power and Its Exercise 1. Some Conceptual Varieties of Sociological Judicial Legitimacy 2. Assessing the Sociological Legitimacy of Judicial Power (a) The Relationship Between Institutional Legitimacy and the Substantive Sociological Legitimacy of Judicial Decisions (b) Authoritative Legitimacy and Its Limits (c) Measures of Sociological Legitimacy and the Limits of Judicial Power C. The Moral Legitimacy of Judicial Power and Its Exercise D. Three Concepts of Legitimacy: A Test Case IV. LEGISLATIVE, PRESIDENTIAL, AND ADMINISTRATIVE LEGITIMACY A. Legal Legitimacy B. Sociological Legitimacy C. Moral Legitimacy V. CONNECTIONS AND DISJUNCTIONS A. Legal Legitimacy B. Sociological Legitimacy C. Moral Legitimacy D. Conflicts and Priorities VI. CONCLUSION: THE PERSISTING IDEAL OF CONSTITUTIONAL LEGITIMACY Legitimacy is a term much invoked but little analyzed in constitutional debates. Uncertainty and confusion frequently result. This Article fills a gap in the literature by analyzing the idea of constitutional legitimacy. It argues that the term invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy--legal, sociological, and moral. When we examine legitimacy debates with these three concepts in mind, striking conclusions emerge. First, the legal legitimacy of the Constitution depends more on its present sociological acceptance than on the (questionable) legality of its formal ratification. Second, although the Constitution deserves to be recognized as morally legitimate, it is only "minimally" rather than "ideally" so: it is not morally perfect, nor has it ever enjoyed unanimous consent. Third, because the Constitution invites disagreement about what it means and how it should be interpreted, many claims about the legal legitimacy of practices under the Constitution rest on inherently uncertain foundations. Significantly, however, a virtual consensus exists that at least some judicial precedents suffice to support future claims of legitimate judicial authority, even when those precedents were themselves erroneously decided in the first instance. Like the legal legitimacy of the Constitution, the legal legitimacy of precedent-based decisionmaking arises from sociological acceptance. Fourth, in the absence of greater legal and sociological consensus, judgments about many purportedly legal questions, including questions of judicial legitimacy, frequently reflect assumptions about the moral legitimacy of official action. Realistic discourse about constitutional legitimacy must therefore reckon with the snarled interconnections among constitutional law, its sociological foundations, and the felt imperatives of practical exigency and moral right. INTRODUCTION Legitimacy is a term much bruited about in discussions of constitutional law. …

Sex, Death and the Fate of the Nation: Reflections on the Politicization of Sexuality in Post-Apartheid South Africa

Abstract: Unexpectedly, sexuality has become one of the principal sites of contestation in post-apartheid South Africa. This paper demonstrates and accounts for the politicization of sex and sexuality in South Africa since 1994. The first part examines the discursive constitution of sexuality and the ways in which this has been informed by wider dimensions of the post-apartheid social order. Drawing on this discussion, the second part proposes a reading of the notorious HIV/AIDS controversy, which drew President Mbeki directly into the political fray. The paper argues that the controversy, although immediately concerned with the science and treatment of HIV/AIDS, is also a struggle over the discursive constitution of sexuality, in a form which dramatizes the ways in which recently contentious struggles over the manner of sexuality are enmeshed in the politics of ‘nation-building’, and the inflections of race, class and generation within it.

Did Democracy Cause the Recession That Led to the Constitution

Abstract: The supporters of the United States Constitution touted it as, among many other things, the only solution to a terrible economic slump. Nearly all free Americans believed much of the responsibility for the recession of the 1780s lay with the thirteen state legislatures. Yet not everyone was of the same mind about what the assemblies, which controlled debtor-creditor relations, the money supply, and the collection of \"Continental\" as well as state taxes under the Articles of Confederation (1781-1789), had done wrong. The Federalists believed the lower houses of the legislatures—which in most states were annually elected and essentially omnipotent—bad damaged tbe economy by caving in to taxpayers' and debtors' demands for release from their legal obligations. They claimed relief legislation was unjust both to government bondholders {the primary recipients of tax money) and to private creditors—and that it had provoked them to stop supplying the capital and credit that were the lifeblood of the American economy. For them, one of the most attractive features of the proposed Constitution was its abolition of relief. The best-known opponents of the Constitution concurred in the Federalists' judgment tbat the state assemblies had caused, or at least exacerbated, the recession of the 1780s by yielding to grass-roots pressure for tax and debr relief. So have most historians of the Constitution. They say the federal convention tbat mer in Philadelphia in the summer of 1787 paved the way for economic revival by creating a new government that was more responsible than its state-level counterparts because it was less responsive to tbe public will.'

The New Imperial Presidency: Renewing Presidential Power after Watergate

Abstract: Has the imperial presidency returned? "Well written and, while indispensable for college courses, should appeal beyond academic audiences to anyone interested in how well we govern ourselves. . . . I cannot help regarding it as a grand sequel for my own "The Imperial Presidency.""---Arthur Schlesinger, Jr. Has the imperial presidency returned? This question has been on the minds of many contemporary political observers, as recent American administrations have aimed to consolidate power. In "The New Imperial Presidency," Andrew Rudalevige suggests that the congressional framework meant to advise and constrain presidential conduct since Watergate has slowly eroded. Rudalevige describes the evolution of executive power in our separated system of governance. He discusses the abuse of power that prompted what he calls the "resurgence regime" against the imperial presidency and inquires as to how and why---over the three decades that followed Watergate---presidents have regained their standing. Chief executives have always sought to interpret constitutional powers broadly. The ambitious president can choose from an array of strategies for pushing against congressional authority; finding scant resistance, he will attempt to expand executive control. Rudalevige's important and timely work reminds us that the freedoms secured by our system of checks and balances do not proceed automatically but depend on the exertions of public servants and the citizens they serve. His story confirms the importance of the "living Constitution," a tradition of historical experiences overlaying the text of the Constitution itself.

Reflections on meaning

Abstract: Preface 1. The Space of Issues and Options 2. A Use Theory of Meaning 3. The Pseudo-Problem of Error 4. The Sharpness of Vague Terms 5. Norms of Truth and Meaning 6. Meaning Constitution and Epistemic Rationality 7. Meaning and its Place in the Faculty of Language 8. Deflating Compositionality

Pork for Policy: Executive and Legislative Exchange in Brazil

Abstract: The Brazilian Constitution of 1988 gave relatively strong powers to the president. We model and test executive-legislative relations in Brazil and demonstrate that presidents have used pork as a political currency to exchange for votes on policy reforms. In particular Presidents Cardoso and Lula have used pork to exchange for amendments to the Constitution. Without policy reforms Brazil would have had greater difficulty meeting its debt obligations. The logic for the exchange of pork for policy reform is that presidents typically have greater electoral incentives than members of Congress to care about economic growth, economic opportunity, income equality, and price stabilization. Members of Congress generally care more about redistributing gains to their constituents. Given the differences in preferences and the relative powers of each, the legislative and executive branches benefit by exploiting the gains from trade. Copyright 2006, Oxford University Press.

News about the EU Constitution Journalistic challenges and media portrayal of the European Union Constitution

Abstract: This multi-method study investigates how news media in Britain, Germany, and the Netherlands covered the Convention’s preparation of the European Union Constitution. The study draws on interviews w...

Religion and the Indonesian Constitution: a recent debate

Abstract: This article examines the recent debate on the position of syari'ah in Indonesian constitutional amendments (1999-2002). The article operates at two levels: a historical review of the debate on Islam and state in Indonesia and a theoretical effort to situate the Indonesian debate in the broader context of debates over Islam and constitutions. It argues that the rejection of the proposed amendment to Article 29, dealing with Islam, has shown that Indonesian Islam follows the substantive approach of syari'ah, not the formal one.

Active Liberty: Interpreting Our Democratic Constitution

Abstract: 1. Active Liberty 2. Freedom of Speech 3. Federalism 4. The Right of Privacy 5. Affirmative Action 6. Statutory Interpretation 7. Administrative Law 8. Purposive Interpretation 9. A Broader Application

Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830

Abstract: Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830. By Daniel J. Hulsebosch. (Chapel Hill, NC: University of North Carolina Press, 2005. Pp. 494. Cloth, $45.00.)This book is part of an older story written anew. Charles Beard, Carl Becker, and Merrill Jensen would find little to fault. Without mentioning the Progressive historians, Hulsebosch argues that American constitutional and legal history can be understood only within the context of intracolonial contests that began early in each colony's history and continued through the mid-nineteenth century. Using New York as a case study, Hulsebosch examines four stages of development: the colonial years to 1760, the Revolutionary generation (1760 to 1786), the Constitutional era (1787 to the 1790s), and the antebellum period (1800 to 1840).As a foundation, Hulsebosch asserts that the multifaceted British imperial law had tremendous influence on New York law, and that New York, positioned at the center of Britain's American colonial empire, played a critical role in the other colonies in interpreting their constitutions and developing their systems of law.Three groups vied with one another in shaping eighteenth-century colonial New York law. A powerful core of imperial agents, such as Cadwalader Colden and William Johnson, acknowledged and advocated the dominance of the British constitution and law and that any liberties enjoyed by colonists (even those claimed under the common law) were held by the grace of the crown and could be "repossessed at will" (93). A native-born provincial elite (called by Hulsebosch the "creole elite"), such as Lewis Morris and William Smith, Jr., argued that colonists brought with them and retained all the rights of Englishmen as embodied in the common law, the great documents of state, and the statutory law. Furthermore, as the years passed, the colonies' experience with self government became the "root of their protest" (94). Although the colonies experienced and relished a federal relationship within the British Empire, the creole elite never developed a theory of divided sovereignty. Hulsebosch's last group of frontier settlers and oceangoing sailors lived on the colony's periphery, often defied local authorities, and espoused the common law and a constitutionalism of migration.Hulsebosch believes that the contests among these three groups "over the relevance and content of the common law, jurisdiction, and the personnel of the legal system (whether judges are appointed to serve for good behavior or at the will of the governor) divided the inhabitants of New York into slowly cohering political groups . . . more than the tension between the abstractions of 'London' and 'the colonies,' help explain the indirect path in New York that ended in rebellion" (134). While not denying the imperial conflict that led to independence, Hulsebosch agrees with the Progressive historians "that the real battle [of the Revolution] was not transatlantic; it went on within the province" (142).Hulsebosch then explores the relationships between the states and the Confederation government, among the states themselves, and within each state. Abandoning Parliament's Declaratory Act's (1766) principle of imperial dominance, New York's Constitution of 1777 proclaimed that all authority emanates from the people.Hulsebosch describes New York's Constitution and makes comparisons with other state constitutions, occasionally with mistakes of varying magnitude. More disappointing is Hulsebosch's failure to mention New York's statutory bill of rights passed in January 1787. Milton Klein and John Phillip Reid have alluded to this act, and I have tried to explain its enactment, but Hulsebosch seems to be unaware of its existence. He also seems unaware of the attempt by the states (particularly New York) to have the common-law judicial rights embodied in state constitutions and bills of rights incorporated into the Confederation government when the states ratified the Impost of 1783. …

Undue Process: Congressional Referral and Judicial Resistance in the Schiavo Controversy

Abstract: The congressional response to the Schiavo controversy was both extraordinary and feeble. Without touching substantive law, Congress essentially offered Schiavo's parents a referral to a federal court for more process. Was the statute constitutional? In this brief essay, I conclude that the answer is probably "yes." Reaching this conclusion, however, necessitates an investigation into when too much process is a constitutional problem. Everyone understands that decision costs are a concern for good policy makers, but when if ever should judges invoke the Constitution to end prolonged handwringing? The law literature is silent on that question. This essay concludes with a first effort to analyze the problem. It identifies a few locations where decision costs are capped by constitutional text or judicial precedent; marks limits on any Dworkinian rights-based argument against process; and reviews the incentives and trade-offs suggested by utilitarian theories of institutional choice and design.

The Law-in-Action of the International Criminal Court

Abstract: When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. —Missouri v. Holland (Oliver Wendell Holmes Jr., J.) As the International Criminal Court (ICC) moves from an exhilarating idea to a carefully negotiated document and finally to an operational institution, the cogency of its conception will be tested by the manifold realities of international politics, not the least of which will be the practical and financial limits those realities may place upon investigation and prosecution. The drafters of the Rome Statute benefited from important previous experiments—the Nuremberg Tribunal and the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. But once the Court is launched, the predecessors and prototypes that were so helpful in the drafting stages will be of less and less assistance. The ICC must operate in a substantially different context than the earlier efforts, and the problems it will encounter (and already is encountering) will be different from and may prove more formidable than those facing its prototypes.

Outsourcing the Constitution and Administrative Law Norms

Abstract: In the United States, the constitutional constraints and administrative law requirements imposed on government agencies generally have no applicability to private entities performing outsourced public administrative activities. In this article, the authors broadly explore the issues associated with outsourcing constitutional and administrative law norms along with government work by imposing them on private contractors. The authors seek to help frame these issues more cogently for the public administration community in an effort to promote more comprehensive and thoughtful discussion of outsourcing and a greater role for public administrative expertise in determining when and how to apply constitutional and administrative law norms to government contractors.

Our Republican Constitution

Abstract: This new book by Adam Tomkins sets out a radical vision of the British constitution. It argues that despite its outwardly monarchic form the constitution is profoundly informed, and indeed shaped, by values and practices of republicanism. The republican reading of the constitution presented in this book places political accountability at the core of the constitutional order. As such, Our Republican Constitution offers a powerful rejoinder to the current trend in legal scholarship that sees the common law and the courts, rather than Parliament, as the central players in holding government to account. The book further contends that while the constitution should be understood as having republican foundations, current constitutional practice is, in a number of respects, insufficiently republican in character. The book closes by outlining a programme of republican constitutional reform that is designed to secure genuinely responsible government. This is an original and provocative reinterpretation of the central themes of the British constitution, drawing on constitutional history (especially of the seventeenth century), political theory and public law.

Babel in Democratization Studies

Abstract: With democracy becoming the global norm, the field of democratization studies has boomed in the last quarter of a century. While early research focused on transitions, over time scholars have begun to pay closer attention to the performance of emerging democracies. Arguably, the major empirical finding of this latter research has been that, while the majority of these new regimes exhibit democratic features such as free and fair elections, a significant number of them deviate from standards and practices that are inherent in the very idea of democratic rule. In various new democracies, in fact, bypassing parliament and ruling by presidential decree appear customary. Packing the courts often paves the way for a heightened concentration of discretionary power in the executive. In some cases, drafting a new constitution and rigging an electoral contest has allowed the incumbent to prolong his stay in office. All too often, the violation of civil rights is common, devaluing the rule of law and eroding the foundations of democratic citizenship. Accordingly, students of democratization have coined a variety of terms to capture what they view as a novel form of political order: “delegative,” “imperfect,” “illiberal,” and “immature” democracy, among many more. 1 Different terminology notwithstanding, such qualifiers all indicate that these polities not only differ from the benchmark democracies of the West, but also represent a diminished version of democracy, a “half-baked” regime. More recently, the study of “hybrid” systems has inspired another taxonomical effort based on qualifying adjectives, though this time applied to authoritarianism. To depict a range of cases allegedly stuck in a gray zone of political evolution, this Ariel C. Armony is associate professor of government at Colby College and author of The Dubious Link: Civic Engagement and Democratization (2004). Hector E. Schamis is assistant professor at American University’s School of International Service and author of Re-Forming the State: The Politics of Privatization in Latin America and Europe (2002).

The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11

Abstract: Since the September 11 attacks on the United States, the Bush administration has come under fire for its methods of combating terrorism. Waging war against al Qaeda has proven to be a legal quagmire, with critics claiming that the administration's response in Afghanistan and Iraq is unconstitutional. The war on terror - and, in a larger sense, the administration's decision to withdraw from the ABM Treaty and the Kyoto accords - has many wondering whether the constitutional framework for making foreign affairs decisions has been discarded by the present administration. John Yoo, formerly a lawyer in the Department of Justice, here makes the case for a completely new approach to understanding what the Constitution says about foreign affairs, particularly the powers of war and peace. Looking to American history, Yoo points out that from Truman and Korea to Clinton's intervention in Kosovo, American presidents have had to act decisively on the world stage without a declaration of war. They are able to do so, Yoo argues, because the Constitution grants the president, Congress, and the courts very different powers, requiring them to negotiate the country's foreign policy. Yoo roots his controversial analysis in a brilliant reconstruction of the original understanding of the foreign affairs power and supplements it with arguments based on constitutional text, structure, and history. Accessibly blending historical arguments with current policy debates, "The Powers of War and Peace" will no doubt be hotly debated. And while the questions it addresses are as old and fundamental as the Constitution itself, America's response to the September 11 attacks has renewed them with even greater force and urgency.

Transforming Mozambique: The Politics of Privatization, 1975–2000

Abstract: Transforming Mozambique: The Politics of Privatization, 1975–2000. By M. Anne Pitcher. New York: Cambridge University Press, 2002. 320p. $60.00. Mozambique provides a sharp contrast with transition in much of Eastern Europe, the former Soviet Union, and even Asia. A Marxist movement (Frelimo) took power in 1975, pledging to construct a socialist state. Only 15 years later, a new constitution made no reference to socialism. By 1994, Mozambique was a multiparty democracy and one of the World Bank's “model” market reformers. Yet Frelimo remains in power, presiding over the private economy it once denounced. Why and how did this happen?

Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers' Rights

Abstract: The thesis presented by Philip Alston, according to which the ILO 1998 Declaration on Fundamental Principles and Rights at Work may undermine what he calls the 'International Labour Regime' (ILR), lacks a clear and coherent methodological framework. This article thus tries to assess more systematically the concrete impact of the Declaration (a) on the achievement of fundamental rights themselves and (b) on other workers' rights. As regards (a), Alston's claim that the Declaration's reliance on 'principles' rather than on specific provisions of ILO instruments has an undesirable impact on the realization of fundamental workers' rights ignores contrary evidence, particularly: (i) more states have ratified the relevant ILO conventions since the Declaration, and compliance therewith has been improved; (ii) for those states which have still not ratified, the process of dialogue and technical cooperation inherent to the follow-up mechanism has generated some tangible progress - though it is recognized that this mechanism may still be improved in the light of experience. As regards (b), the ILO's capacity to make effective other workers' rights is subject to obvious constraints. However these limitations are inherent to the ILR; they have nothing to do with the Declaration. On the contrary, the Declaration and its follow-up represent an added-value for their promotion, particularly because fundamental rights are enabling rights and their increased application gives greater possibilities for workers all over the world to 'claim' other workers' rights, and because the follow-up to the Declaration provides a model and a precedent for a possible use of Article 19 of the ILO Constitution for the universal promotion of rights dealt with in relevant conventions and recommendations, * ILO former Legal Adviser. The author expresses his deep appreciation to Kari Tapiola, Cleopatra Doumbia-Henry, Manuela Tomei, Janelle Diller, Dominick Devlin, Anne Trebilcock and Catherine Hansell for their contributions and comments, as well as Maria Paz Anzorreguy for her valuable assist- ance. He, however, takes full personal responsibility for the views expressed in this chapter, and in no

The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union

Abstract: Our aim in this article is to consider whether the Union's deliberation over and decision-making on constitutional norms can contribute to render it more democratic. From a normative perspective, the way a constitution is forged has deep implications for its democratic legitimacy. In light of recent events, we consider how procedural changes in constitution-making might contribute to rectify the Union's democratic deficit. To do so we first develop a thin model of constitution-making based on the central tenets of deliberative democracy. Through this we seek to outline how a legitimate constitution-making process will look from a deliberative democratic perspective. Second, we distill out some of the core characteristics of the Intergovernmental Conference (hereafter, IGC) model and assess this against the normative model, to establish the democratic quality of the IGC model. Third, we assess the current Laeken process by means of spelling out the central tenets of this mode of constitution-making, and we assess it in relation to the normative standards of the deliberative model. In the fourth and final step, we consider what contribution constitution-making might make to the handling of the EU's legitimacy deficit(s). We find that the Laeken process, in contrast to previous IGCs, was explicitly framed as a matter of constitution-making. It carried further the democratization of constitution-making, through its heightened degree of inclusivity and transparency. However, when considered in relation to the deliberative-democratic model, it is clear that the Laeken Constitutional Treaty cannot be accorded the full dignity of a democratic constitution. The Constitutional Treaty can however lay the foundations for 'We the European people to speak'.

The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System

Abstract: This is a book about the constitutionalization of the World Trade Organization, and the contemporary development of institutional forms and democratic ideas associated with constitutionalism within the world trading system. It is about constitutionalization enthusiasts who promote institutions, management techniques, rights discourse and quasi-judicial power to construct a constitution for the WTO. It is about constitutional skeptics who fear the effect the phenomenon of constitutionalization is having on the autonomy of states, the capacity of the WTO to consider non-economic and non-free-trade goals, and democratic processes at the WTO and within the nation-state. The aim of the study, then, is to disentangle debates about the various meanings of the term 'constitution' when it used to apply to the World Trade Organization, and to reflect upon the significance of those meanings for more general international law conceptions of constitutions. Cass argues that the WTO is not and should not be described as a constitution, either by the standards of any received account of that term, or by the lights of any of the current WTO models. Under these definitions serious issues of legitimacy, democracy and community are at stake. The WTO would lack a proper political structure to balance the work of its judicial bodies; it may curtail the ability of states to decide matters of national economic interest; it lacks authorization by a coherent political community; and, it risks an emphasis upon economic goals and pure free trade over other, equally important, social values. Instead, Cass argues that what is needed is a constitutionalized WTO which considers the economic development needs of states and takes account of the skewed playing field of international trade and its effect on the economic prospects of developing countries. In short, trading democracy, legitimacy and community and not trading constitutionalization, are the biggest challenges facing the WTO.

The European Union: A Polity of States and Peoples

Abstract: This book explains to a general audience what the European Union is about and how it has grown since 1952 into a polity of 25 States and a population of more than 450 million people. It explains the constitution-making process that is currently taking place in the European Union, and the significance of the draft constitution which has been submitted for ratification by the 25 member states. The book is written from a legal perspective, but contains many references to political science and recent American and European history. It aims to show how the distinctive features of a democratic polity that characterize the Member States can be gradually transplanted to the European Union. To make the book useful to a more specialized set of readers, such as students of law and politics, it contains a large number of notes that contain detailed information and point to additional reading on a variety of topics. The book draws on the author's exceptionally wide and profound knowledge of the institutions of the EU, its history, its laws and its varied cultures. "This book, written by one of the greatest scholars of European law, provides a rare insight into the evolving European constitutionalism. Its analytical narrative explores themes of democracy, accountability, human rights and the rule of law and draws comparisons between the US and European political systems. The end result is an excellent essay on European governance" Professor Takis Tridimas, Queen Mary University of London