Showing papers on "Constitution published in 2007"

Coloniality and modernity/rationality

Abstract: With the conquest of the societies and the cultures which inhabit what today is called Latin America, began the constitution of a new world order, culminating, five hundred years later, in a global...

Social Reproduction and the Constitution of a Gendered Political Economy

Abstract: This review essay outlines and compares several recent contributions in feminist political economy with particular emphasis on the renaissance of the concept of social reproduction.1 Most definitio...

Communal Violence and Democratization in Indonesia: Small Town Wars

Abstract: 1. Introduction 2. Why Now? Temporal Contexts 3. Why Here? The Town beyond Java 4. Identity Formation in West Kalimantan 5. Escalation in Poso 6. Mobilization in Ambon 7. Polarization in North Maluku 8. Actor Constitution in Central Kalimantan 9. Concluding Reflections

The Institutionalization of Political Power in Africa

Abstract: On 16 May 2006, after months of intense and divisive national debate, the Senate of Nigeria rejected a bill which would have changed that country’s constitution to permit President Olusegun Obasanjo a third term in office. By asserting the supremacy of the constitution (with its two-term limit) over the desires of President Obasanjo’s supporters that the popular leader be permitted to run for a third term, the Senate’s vote marked a watershed in Nigeria’s political history. As important as the outcome was the way in which the conflict was resolved— by the votes of duly elected legislators rather than through force or the threat of same. Given that Nigeria’s First and Second Republics (1963– 66 and 1979–83) were overthrown by military coups, the settlement of this political struggle via the Senate chamber rather than the gun barrel represents a major shift in the way that decisions over executive tenure in Nigeria have been made. 1 Both the outcome of Obasanjo’s third-term campaign and the process through which it was reached signal a growing trend in sub-Saharan Africa: The formal rules of the game are beginning to matter in ways that they previously have not. Scholarly and popular writers alike have traditionally depicted Africa as a place where formal institutional rules are largely irrelevant. Although every African country has a constitution as well as a body of laws and administrative procedures that place formal limits on executive power, the long-held consensus among observers has been that these rules play little role in actually constraining leaders’ behavior. This view is reflected in the “personal rule” or “Big Man” paradigm that has dominated the study of African Daniel N. Posner is associate professor of political science at the University of California–Los Angeles (UCLA) and author of Institutions and Ethnic Politics in Africa (2005). Daniel J. Young is a doctoral candidate in political science at UCLA and is finishing a dissertation on political parties in Africa based on fieldwork in Malawi.

No Child Left Behind and the Transformation of Federal Education Policy, 1965–2005

Abstract: No Child Left Behind and the Transformation of Federal Education Policy, 1965–2005. By Patrick J. McGuinn. Lawrence: University Press of Kansas, 2006. 320p. $40.00 cloth, $19.95 paper. No Child Left Behind (NCLB) is an attempt by the federal government to regulate educational policy in the 50 states. By imposing on states a set of standards, benchmarks of yearly progress, and imposing sanctions on failing schools, the U.S. Department of Education has made a significant step from being more than a federal bully pulpit and a perch for fading politicians to a genuine ministry of education. This is ironic because the U.S. Constitution reserves to the states educational policy, except when it comes to enforcing civil rights. The strong bipartisan support for NCLB is a political, policy, and constitutional sea change in American history. How—and more importantly, why—did this happen?

Paradoxes of Constitutional Democracy

Abstract: Drawing on the work of Frank Michelman and Jurgen Habermas, I outline two interconnected paradoxes of constitutional democracy. The paradox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self‐generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that we cannot evaluate the legitimacy of a dynamically evolving constitution based on projections of its future development. To do so, we would need a stronger basis for making probabilistic judgments about the constitution's future path. After exploring the problems of using constitutional patriotism as such a basis, I outline an alternative built on the ideas of dynamic constitutionalism and reflexive citizenship. It shows how a dynamically evolving constitution can promote its own legitimacy from within, simultaneously resolving both paradoxes.

The Legitimacy of the People

Abstract: In political theory it goes without saying that the constitution of government raises a claim for legitimacy. With the constitution of the people, however, it is different. It is often dismissed as a historical question. The conviction is that since the people cannot decide on its own composition the boundaries of democracy must be determined by other factors, such as the contingent forces of history. This article critically assesses this view. It argues that like the constitution of government, the constitution of the people raises a claim for legitimacy. The failure to see this is what makes many theorists run into the arms of history. They submit the legitimacy of the people to the arbitrary and asymmetrical forces of the present.

Iraq's Constitution of 2005: Liberal consociation as political prescription

Abstract: Democracies have two basic choices for managing ethnic, national, and religious diversity. They may seek to construct a single all-embracing public identity through “ integration ” or try to accommodate dual or multiple public identities through “ consociation. ” These are the two dominant, broad-based prescriptions that are offered for addressing the confl ict in Iraq. In this article, we argue that Iraq’s new Constitution, ratifi ed in 2005, refl ects a “ liberal ” form of consociation that accommodates Iraq’s democratically mobilized communities. We examine in detail the Constitution’s provisions for both self-government and for shared government, and argue that these provisions represent a reasonable way forward for all of Iraq’s citizens and peoples. The Constitution is defended against integrationist criticisms.

Creating European Citizens

Abstract: Introduction Chapter 1: Introducing European Rights Chapter 2: From Rights to Citizenship Chapter 3: Maastricht's Constitutional Moment Chapter 4: Europe's Homogeneous Space Chapter 5: Toward a Constitution Chapter 6: The Limits of European Citizenship Conclusion Selected Bibliography

Democratization Reforms in Turkey, 1993–2004

Abstract: The Turkish Constitution, which was drafted in 1982 under the aegis of the military regime, has been the subject of protracted domestic and international criticisms for its shortcomings according to international democratic norms. There had been a number of changes to the Constitution during the 1990s to address some of these shortcomings. In particular, there have been important amendments and changes to the Constitution between 2002 and 2004 that have led to significant improvements in fundamental rights and liberties, political rights, the rule of law, and civil–military relations. This essay examines the changes that have taken place to the Turkish Constitution and their ramifications on Turkish politics.

Personalizing power in uganda

Abstract: Throughout the 1990s, the international donor community hailed Uganda as Africa’s leading postconflict success story. 1 The country’s achievements, so it was said, were both economic and political. Economically, the government of guerrilla-leader-turned-president Yoweri Museveni had taken giant steps away from state control and toward a more liberal and market-friendly system. Politically, the Museveni administration was praised for ensuring stability, respecting human rights, and putting in place a democratization process in a land still deeply wounded by the murderous dictatorship of General Idi Amin (r. 1971–79) and the years of bloody strife that followed his fall and flight into Saudi Arabian exile. Overlooking the Museveni government’s many unsavory deeds, observers invested further hopes in a constitution-making process that led to the adoption of a new basic law in 1995. With all its flaws—such as banning normal political-party activities—the 1995 constitution did set up a number of democratic guarantees as well as a few checks and balances against arbitrary uses of power. A dozen years after the adoption of the new constitution, however, the democratization process has been thrown into reverse. Uganda today is sliding backward toward a system of one-man rule engineered by the recently reelected President Museveni, who has now been in power for more than two decades. Perhaps more disturbingly still, the stakeholders whom one would naturally expect to arise to denounce Museveni’s sapping operation against free and open government— Uganda’s oppositionists, civil society groups, middle-class citizens, and foreign donors and creditors—have been virtual no-shows. Andrew M. Mwenda is currently a John Knight Fellow at Stanford University. He has been political editor of Uganda’s Daily Monitor and host of a prime-time radio talk show. He is a founding fellow at the Advocates Coalition for Development and Environment (ACODE), a public-policy research group in Kampala.

Ideology and Empire in Eighteenth-Century India: The British in Bengal

Abstract: Robert Travers' analysis of British conquests in late eighteenth-century India shows how new ideas were formulated about the construction of empire. After the British East India Company conquered the vast province of Bengal, Britons confronted the apparent anomaly of a European trading company acting as an Indian ruler. Responding to a prolonged crisis of imperial legitimacy, British officials in Bengal tried to build their authority on the basis of an 'ancient constitution', supposedly discovered among the remnants of the declining Mughal Empire. In the search for an indigenous constitution, British political concepts were redeployed and redefined on the Indian frontier of empire, while stereotypes about 'oriental despotism' were challenged by the encounter with sophisticated Indian state forms. This highly original book uncovers a forgotten style of imperial state-building based on constitutional restoration, and in the process opens up new points of connection between British, imperial and South Asian history.

The British Constitution

Abstract: 1. What Is a 'Constitution'? 2. The Canonical Sextet 3. Britain's Traditional Constitution 4. The Impetus to Change 5. Britain's Near Abroad 6. The Judges Come Out 7. The Ghost of Local Government 8. John Bull's Other Lands 9. Mandarins as Managers 10. Democracy Rampant 11. References to the People 12. Their Lordships 13. Great British Icons 14. Britain's New Constitution Notes Bibliography Index

Religious Freedom and the Constitution

Abstract: Religion has become a charged token in a politics of division. In disputes about faith-based social services, public money for religious schools, the Pledge of Allegiance, Ten Commandments monuments, the theory of evolution, and many other topics, angry contestation threatens to displace America's historic commitment to religious freedom. Part of the problem, the authors argue, is that constitutional analysis of religious freedom has been hobbled by the idea of "a wall of separation" between church and state. That metaphor has been understood to demand that religion be treated far better than other concerns in some contexts, and far worse in others. Sometimes it seems to insist on both contrary forms of treatment simultaneously. Missing has been concern for the fair and equal treatment of religion. In response, the authors offer an understanding of religious freedom called Equal Liberty. Equal Liberty is guided by two principles. First, no one within the reach of the Constitution ought to be devalued on account of the spiritual foundation of their commitments. Second, all persons should enjoy broad rights of free speech, personal autonomy, associative freedom, and private property. Together, these principles are generous and fair to a wide range of religious beliefs and practices. With Equal Liberty as their guide, the authors offer practical, moderate, and appealing terms for the settlement of many hot-button issues that have plunged religious freedom into controversy. Their book calls Americans back to the project of finding fair terms of cooperation for a religiously diverse people, and it offers a valuable set of tools for working toward that end.

The living Constitution

Abstract: I. LECTURE ONE: ARE WE A NATION? The telephone rang, and a familiar conversation began: since 1989, the State Department had been badgering me to serve on delegations to advise one or another country on its constitutional transition to democracy. I had refused, and refused, and refused: no junketing for me, no ignorant professing in front of politicians I did not know on countries I barely understood. But once again, I heard an earnest midwestern voice at the end of the line, speaking self-importantly in the name of the Special Assistant to the Assistant to the Deputy Assistant Secretary of State. This time, he assured me, it was going to be completely different. The State Department wasn't asking me to help write a constitution in a language I couldn't read. It was inviting me to engage in a one-on-one tutorial with the great Akhil Alfarabi, a master of both the European and Islamic legal traditions, who was eager to extend his understanding to American constitutional law. Nothing but mutual enlightenment, the cheery voice guaranteed: it was past time to bridge the fearsome cavern separating the great legal systems of the world. And they were asking only for a week of my time. Why not? I asked, and I soon found myself, jetlagged, encountering a smiling Alfarabi at an undisclosed location. After drinking endless cups of tea, we began serious conversation where I always begin: with the written Constitution, starting from the words "We the People" and working our way to the end of the text. Alfarabi fulfilled my fondest expectations. He was a master of the art of elaborating profound legal principles out of lapidary texts and listened intently as I presented the famous words left behind by the American Founding and Reconstruction. A couple of days of joyful conversation passed, and we finally moved into our final lap: the texts of the twentieth century. But Alfarabi was getting impatient, and a bit resentful, at my treating him like a brilliant first-year student. "How about changing roles," he suggested, "and letting me take the lead in interpreting the last few constitutional amendments?" Truth to tell, I was a bit doubtful: for all his learning, he didn't have the foggiest idea of American history. But after all, I didn't have any idea of his country's history, and that hadn't stopped us from engaging in some great conversation. "Why not?" I asked myself, glimpsing the ghost of John Dewey (1) enthusiastically nodding his approval: "We have reached the Twenty-First Amendment. What do you think it means?" "Well, the year is 1933, and Franklin Roosevelt is coming into office--he's the one who announced the New Deal, no?" I nodded enthusiastically, as is my habit, and was greatly relieved to learn that the guy knew more about my country's history than I knew of his. "And looking at the amendment," said Akhil, "I can see precisely why they call it the New Deal. I find it deeply regrettable that the American people repealed the ban on the consumption of alcoholic beverages, but as a lawyer it's obvious that something very new is happening: We the People are demanding a sharp cutback in overly ambitious federal regulatory schemes. The larger constitutional principle is clear: the era of Big Government is over." Alfarabi spoke with confidence, for great lawyers never lack self-confidence. Before I could figure out what to say, Akhil was pushing on to the next amendment. "This Twenty-Second Amendment," he explained triumphantly, "only confirms my interpretation. I see that it was enacted when Harry Truman was in the White House--wasn't he a loyal follower of Roosevelt?--and the text makes it clear that the People are moving right along in the direction marked by Roosevelt's New Deal. In 1933, they repudiated Big Government; now they are cutting the imperial presidency down to size by limiting incumbents to two terms in office. …

Constitution Making and Democratization in Kenya (2000-2005)

Abstract: The article analyses the most intense phase of a process of constitutional review in Kenya that has been ongoing since about 1990: that stage began in 2000 and is, perhaps, not yet completed, there being as yet no new constitution. The article describes the reasons for the review and the process. It offers an account of the role of the media and various sectors of society including women and previously marginalized ethnic groups, in shaping the agenda, the process and the outcome. It argues that although civil society, with much popular support, was prominent in pushing for change, when an official process of review began, the vested interests of government and even of those trusted with the review frustrated a quick outcome, and especially any outcome that meant curtailing the powers of government. Even high levels of popular involvement were unable to guarantee a new constitution against manipulation by government and other vested interests involved in review, including the law and the courts. However, ...

Party Affiliations in the State Legislatures: A Year by Year Summary, 1796-2006

Abstract: Over the years, America's national elections have become focused almost exclusively on Democrats and Republicans; other parties exist but rarely rise to prominence. Elections at the state level, on the other hand, offer a livelier history, with successful candidates from political parties of all stripe, including Free Soil, Abolitionist, Anti-Monopoly, Farmers Alliance, War Democrat, Anti-Masonic, Socialist, and many more. This book lists the party affiliation of every state legislator from 1796 through the elections of 2006. Information on each state includes a summary of how its electoral process developed, including the origins and stipulations of each state's constitution, the terms and size of the legislature, and other details pertaining to the history of the state's legislative branch. Each state's chapter closes with a list of sources. In all, the book documents over 100 different party affiliations.

The Migration of Constitutional Ideas

Abstract: 1. Migration as a new metaphor in comparative constitutional law Sujit Choudhry Part I. The Methodology of Comparativism: 2. On the blurred methodological matrix of comparative constitutional law Ran Hirschl 3. Some reflections on method in comparative constitutional law Mark Tushnet 4. The postwar paradigm and American exceptionalism Lorraine Weinrib Part II. Convergence Toward a Liberal Democratic Model?: 5. Questioning the migration of constitutional ideas: rights, constitutionalism and the limits of convergence Jeff Goldsworthy 6. Spreading liberal constitutionalism: an inquiry into the fate of free speech rights in new democracies Andras Sajo and Michel Rosenfeld 7. Underlying principles and the migration of reasoning templates: a trans-systemic reading of the Quebec Secession Reference Jean-Francois Gaudreault-Desbiens 8. Migrating marriages and comparative constitutionalism Brenda Cossman Part III. Comparative Constitutional Law, International Law and Transnational Governance: 9. Inimical to constitutional values: complex migrations of constitutional rights Mayo Moran 10. Democratic constitutionalism encounters international law: terms of engagement Mattias Kumm 11. Constitution or model treaty? Struggling over the interpretive authority of NAFTA David Schneiderman 12. The migration of constitutional ideas and the migration of the constitutional idea: the case of the EU Neil Walker Part IV. Comparative Constitutional Law in Action - Constitutionalism Post 9/11: 13. The migration of anti-constitutional ideas: the post-9/11 globalization of public law and the international state of emergency Kim Scheppele 14. The post-9/11 migration of Britain's Terrorism Act 2000 Kent Roach 15. Control systems and the migration of anomalies Oren Gross.

Policing, regime change and democracy: reflections from the case of mexico

Abstract: This paper explores the experience of attempts to mount new policing operations and restore order in post-revolutionary Mexico, with the aim of generating policy insights for contemporary countries experiencing regime change, and in particular Iraq. It describes how and why the challenges of policing regime change in post-dictatorship Mexico laid the foundation for that country's descent into chaos. Central to this process were the problems engendered by trade-offs between democracy and public security, whereby the privileging of attempts to secure the latter over the former ultimately worked against both, producing further police corruption and abuse of power. More generally, the paper seeks to understand which organisational, political, and societal conditions are more or less likely to lead to the establishment of stable, professional, and non-partisan police who in turn play a positive role in facilitating democratic regime change. The experience of Mexico suggests that the more a new regime needs to count on citizen militias with their own political, ethnic, and religious exclusivities, as opposed to professional police with a commitment to non-partisan social inclusion, the worse the societal fragmentation and the greater the likelihood of persistent violence. The paper concludes that in situations where new regimes have been born out of violent conflict it might be unwise to rush into constitutional reforms that enhance and set in stone police powers. While putting off the task of constitution-making may prolong the effort to establish the foundations for democracy, the question is which elements of the constitution should be dealt with right now, and which might wait until a more propitious moment. In Iraq, a focus on building state institutions and making them accountable, transparent, and pluralistic is likely to provide a more fruitful way forward at this stage than constitutionally enhancing greater police powers. ∗ The author wishes to thank both the Carnegie Corporation of New York and the John D. and Catherine T. MacArthur Foundation for research support on policing and political transition that led to this essay. The bulk of this essay was written with the Mexican case in mind, and with a view to the early stages of regime consolidation in Iraq, not more recent developments. As such, its aims are to inspire more general reflection on the dilemmas and challenges of policing in conditions of regime change, not to advance specific propositions about Iraq. For further information please contact: dedavis@mit.edu

Judge Richard Posner on Civil Liberties: Pragmatic Authoritarian Libertarian

Abstract: How do you reconcile a civil liberties opinion like Edmond v. City of Indianapolis, 183 F.3d 659 (7th Cir. 1999) with the anti-civil libertarian positions that Richard Posner advocates in his book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006)? In Edmond, Judge Posner ruled in favor of a class of plaintiffs challenging the city of Indianapolis' practice of setting up road-blocks to catch drug offenders. The road-blocks had everything going for them. They distributed the costs of enforcement evenly across drivers, interfered minimally with their movement, and invaded only slightly their privacy. In addition, they were, apparently, successful: although only 1,161 vehicles were stopped, 5% of the stops resulted in successful searches for drugs and another 4% resulted in non-drug-related arrests - for an overall hit rate of almost 9%. Despite this, Judge Posner ruled against the road-blocks, resting heavily on the idea that the police did not have individualized suspicion - a legal fiction that makes little sense to anyone, especially economists or law and economics trained lawyers, who conceive of probable cause in probabilistic terms. In contrast, in Not a Suicide Pact, Richard Posner argues in defense of the use of coercive interrogation techniques up to and including torture; in support of the National Security Agency (NSA) program of warrantless electronic surveillance of American citizens; in favor of criminally punishing the dissemination (including by the media) of classified material concerning national security; and in defense of the constitutionality (though not yet the necessity) of prohibiting extremist speech. How do you reconcile these positions? The answer is to be found in Judge Posner's unique brand of libertarianism. It is, first, pragmatic. As Judge Posner writes in Edmond, When urgent considerations of the public safety require compromise with the normal principles constraining law enforcement, the normal principles may have to bend. The Constitution is not a suicide pact. Staunch libertarians - on the Right and on the Left - might call pragmatic libertarianism an oxymoron and argue that civil liberties are only valuable in times of crisis. But the introduction of pragmatic concerns does not necessarily vitiate a libertarian perspective. The key question becomes: What flavor of pragmatism? The fact is, the pragmatic impulse can come in two very different flavors: one that still puts law enforcement measures to a serious test and another where the mere placement of the measure within the category of national emergency by necessary implication produces a foreseeable result. If that foreseeable result always favors law enforcement, I would label the approach, following Posner, authoritarian. This, then, is what makes Richard Posner a pragmatic libertarian, authoritarian-style. It is a position that combines, in a curious way, deep distrust of government intervention in economic matters, sincere belief in government incompetence, and trust that the government will not abuse or mismanage its augmented enforcement responsibilities during a time of national security emergency. In contrast to pragmatic libertarians on the Left, it is not skeptical of the government's ability to properly safeguard sensitive or personal information, to limit the use of excess force, or to avoid abusing these newfound powers.

The University of California,Berkeley

Abstract: The roots of the University of California go back to the gold rush days of 1849,when the drafters of the State Constitution,a group of vigorous and farsighted people,required the legislature to "encourage by all suitable means the promotion of intellectual,scientific,moral and agricultural improvement"of the people of California.These early

Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited

Abstract: This article considers anew the utility of rights-discourse in alleviating social hardship. It revisits the Critical Legal Studies-inspired debates on the topic, but in the context of justiciable socioeconomic rights, such as those found in the South African Constitution. The article explains the "emptiness" of the socioeconomic rights jurisprudence of the South African Constitutional Court by comparing the South African socioeconomic rights narrative to Peter Gabel's account of the manner in which rights discourse enables the status quo to assimilate and defeat social movements. By doing this, the article shows that socioeconomic rights are accomplices to, rather than victims of, the sidelining of the needs they represent, despite their transformative potential. However, since rights remain one of the only viable political tools through which denial of socioeconomic needs may effectively be confronted, we should not abandon rights-discourse but should instead attempt to translate abstract socioeconomic guarantees into concrete legal entitlements. [End Page 796]

Party Stances in the Referendums on the EU Constitution: Causes and Consequences of Competition and Collusion

Abstract: This article examines political party behaviour around the referendums on the EU Constitutional Treaty in 2005. Starting from the presumption that this behaviour needs to be analysed in the light of the domestic government-opposition dynamics, a set of hypotheses on the causes and consequences of party behaviour in EU Treaty referendums is developed and reviewed for the EU member states in which a referendum was held or anticipated. As it turns out, with the exception of some right-conservative parties, all mainstream parties endorsed the Constitutional Treaty. However, because significant proportions of opposition party supporters are bound to go to the ‘No’ side, government parties are eventually crucial in securing a majority in favour of EU Treaty revisions.

The Case for Presidential Term Limits

Abstract: The principles of limited tenure and rotation in government office have an ancient heritage, stretching back to the republics of Athens and Rome. In the era of modern democracy, limits on presidential terms date back to the middle of the nineteenth century, when they first appeared in Latin America. Thereafter, presidential term limits were gradually adopted elsewhere, and in the 1990s they spread rapidly across the world, coming to be seen as a key feature of democratic government. Today, however, there is a worrisome rival trend, as presidents and their allies roll back constitutional provisions imposing term limits through "creative" interpretations of legal language, amendments permitting extended tenures in office, or even outright abolition. I have constructed a set of 92 countries, each of which has a population of more than two million people, at least a modest degree of political openness, and a presidential or semipresidential system. 1 All but five of these—87 out of 92—had experience with presidential term limits during the period from 1992 to 2006. The institution of presidential term limits has spread remarkably far, but enforcement—making these limits stick despite the eagerness of incumbents to stay in office—remains a major challenge. Between 1992 and 2006, 26 presidents contravened their term limits. They did so in two ways: In 14 countries, such as Belarus, Kazakhstan, and Uganda, they engaged in "hard contravention," simply eliminating constitutional provisions on term limits. In another 12 coun- tries, such as Kyrgyzstan, Namibia, and Peru, they undertook "soft contra- vention," staying in office in excess of the tenure the constitution had initially mandated, but without entirely eliminating term-limit provisions. To do this, they either secured judicial rulings that their first terms would Gideon Maltz is an associate in the international-trade practice of Hogan & Hartson LLP in Washington, D.C. He recently completed a one-year fellowship at Stanford University's Center on Democracy, Development, and the Rule of Law.

Roe Rage: Democratic Constitutionalism and Backlash

Abstract: After decades of assault on the jurisprudence of the Warren Court, many progressive legal scholars have lost faith in judicial enforcement of constitutional rights. Some have responded by embracing popular constitutionalism and advocating mobilization against the Rehnquist and Roberts Courts; others, chastened, urge a minimalist jurisprudence that will avoid giving any group offense. There is fear of provoking the kind of backlash that many associate with Roe, which is often regarded as having caused the rise of the New Right. In this article, we offer a new account of the relationship between adjudication and popular constitutionalism, which we call democratic constitutionalism. Democratic constitutionalism affirms both the need for judicially enforced rights and the fundamental significance of popular constitutional engagement. We begin from the understanding that, in the American tradition, constitutional politics and constitutional law depend on one another, however insistently they assert their autonomy. This article offers an account of democratic constitutionalism which emphasizes the interdependence of judicial and popular enforcement of constitutional rights, despite perpetual friction between them. Judicially enforceable rights give concrete and institutional form to constitutional values; ongoing popular constitutional engagement ensures that these values retain democratic legitimacy. Interpretive disagreement is a normal condition for the development of constitutional law. We identify understandings and practices that enable citizens to make claims on the Constitution and government officials to resist and respond to their claims; these interactions shape the Constitution's meaning over time in ways that sustain citizen engagement in our constitutional order and reconcile Americans' competing commitments to the rule of law and to self-governance. We draw on these understandings to question leading accounts of backlash featured in the work of Michael Klarman, William Eskridge, and Cass Sunstein. Each of these theorists tends in his own way to overestimate the costs of backlash and to underestimate its benefits. They are each attuned to the harms that attend constitutional conflict, but they do not sufficiently consider how citizen engagement in constitutional contestation can contribute to social cohesion in a normatively heterogeneous polity. Roe symbolizes the fears of those who counsel courts to avoid controversy. Legal scholars and political commentators commonly assert that judicial overreaching produced Roe rage, arguing that legislatures might have liberalized access to abortion if only the Court had stayed its hand. We examine scholarship on Roe's reception, as well as primary sources of the era, which together undermine this conventional account. Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. During the 1970s, opponents of the Equal Rights Amendment and the school prayer decisions condemned the abortion right as an expression of "secular humanism," giving birth to the coalition politics we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state. Roe rage opposes ideals of individualism and secularism that lie at the foundation of our modern constitutional order. Accommodating resistance to Roe thus presents normative questions analogous to those posed by accommodating resistance to Brown. The article concludes by illustrating how the themes of Roe rage have recently found expression in the Supreme Court's opinion in Carhart.

Principles of European Constitutional Law

Abstract: The Constitutional Approach to EU Law Armin von Bogdandy and Jurgen Bast Part I: Defining the Field of European Constitutional Law 1. Founding Principles Armin von Bogdandy 2. Federalism and Democracy Stefan Oeter 3. National Constitutional Law Relating to the European Union Christoph Grabenwarter 4. The Constitutional Role of International Law Robert Uerpmann-Wittzack 5. Pouvoir Constituant-Constitution-Constitutionalisation Christoph Mollers 6. On Finality Ulrich Haltern Part II: Institutional Issues 7. The Political Institutions Philipp Dann 8. The Federal Order of Competences Armin von Bogdandy and Jurgen Bast 9. Foreign Affairs Daniel Thym 10. Legal Instruments and Judicial Protection Jurgen Bast 11. Multilevel Constitutional Jurisdiction Franz C Mayer Part III: The Legal Position of the Individual 12. Union Citizenship Stefan Kadelbach 13. Fundamental Rights Jurgen Kuhling 14. Fundamental Freedoms Thorsten Kingreen 15. The Area of Freedom, Security and Justice Jorg Monar Part IV: The Constitution of the Social Order 16 The Economic Constitution within the Internal Market Armin Hatje 17 The Labour Constitution Florian Rodl 18 Competition Law as Part of the European Constitution Josef Drexl Part V: Contending Visions of European Integration 19 The European Union as a Federal Association of States and Citizens Ulrich Everling 20 The European Union of States Paul Kirchhof 21 The Advantages of the European Constitution Manfred Zuleeg

Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise in the Making of a Constitution for Europe (1940s−1960s)

Abstract: By exploring how early political investments in favor of a European Constitution have been turned into a legal enterprise to constitutionalize the European treaties, this article analyzes the changing role of legal elites in the genesis of a European transnational order. At first, legal activities of constitution-making were closely linked to military issues and political mobilizations; later, the legal work of constitutionalization took a different path as a result of the process of differentiation of the European field of power and of the internal and contradictory logics of a newly created legal institution, the European Court of Justice (ECJ). By reconstructing the constitutionalization process, this article highlights the various types of elites then competing for the early definition of a European transnational order and, in particular, the capitals and representations of legal agents in the making of a Constitution for Europe.

2005-06 Brennan Center Symposium Lecture - Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto Era

Abstract: Social movements change the ways Americans understand the Constitution. Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding - a dynamic that guides officials interpreting the open-textured language of the Constitution's rights guarantees. To show how constitutional culture channels social movement conflict to produce enforceable constitutional understandings, I consider how equal protection doctrine prohibiting sex discrimination was forged in the Equal Rights Amendment's defeat. This story of the "de facto ERA" illustrates how constitutional culture can channel social movement conflict to produce little noticed socially integrative effects. As movement and counter-movement struggle to persuade (or recruit) uncommitted members of the public, each movement is forced to take account of the other's arguments, and in time may even begin to incorporate aspects of the other's arguments into its own claims - a dynamic that can transpire unconsciously or with the conscious purpose of strengthening arguments under conditions of adversarial engagement. Movement conflict also plays an underappreciated role in enabling judicial review. As adversaries hone their arguments to meet their opponent's most powerful claims, the quest to persuade creates areas of apparent or actual convergence in which the Court can decide cases. The ERA ratification debates led opponents to assert that the Fourteenth Amendment already contained sex equality principles that ERA proponents insisted should be added to the Constitution, and led proponents to separate concepts of sex equality under the ERA from abortion and gay rights which opponents charged the ERA would promote. Understandings consolidated in the ERA debate guided the Court as it ruled that sex discrimination violated the equal citizenship principle and as it limited the kinds of practices cognizable as sex discrimination. Examining how the ERA's proposal and defeat shaped the modern law of sex discrimination suggests that when social movement conflict is channeled by constitutional culture, it can guide officials in enforcing the Constitution in new ways, enabling constitutional change without lawmaking that nonetheless respects the distinction between politics and law. Constitutional culture provides the understandings and practices that citizens and officials draw on in debates about the Constitution's meaning, structuring the forms of communication and deliberative engagement among citizens and officials that dynamically sustain the Constitution's democratic authority in history.

Introduction: Contested competences in the European Union

Abstract: In this article, we set out an approach to European Union politics that seeks to explain its development using theories of institutional change. In contrast to dominant theories which assume that the Treaties, the governing texts of the European Union, faithfully ensure that the desires of member states are respected, we argue that these theories are incomplete contracts, rife with ambiguities. This means that during periods between Treaty negotiations, we may expect that collective actors in the European Union policy process – the European Commission, the European Parliament and the Council – will each seek to bargain over these ambiguities so that their effective competences are maximised. Their ability to negotiate successfully will depend on their bargaining strength. These ‘conflicts over competences’ may lead to the creation of informal institutions. They may also in the longer term lead to formal institutional change, if they become folded into Treaty texts, or otherwise influence them, in subsequent rounds of negotiation. What are the sources of change in institutional settings such as the European Union? This question is at the heart of important debates in both comparative politics and international relations. In the study of the EU, an influential body of scholarship has argued that the Treaty texts, the underlying ‘constitution’ of the EU, fully reflect the intentions of their drafters. Member states create the correct incentives for the other actors, the Commission, Parliament, to act according to the formers’ preferences (Moravcsik 1998; Tsebelis and Garrett 2001). Change, when it occurs, reflects changes in the underlying constellation of member state interests. In this volume, we set out to challenge this set of arguments and to show how change may be driven by conflicts between the Council, Parliament and Commission over their respective competences within the legislative and policy-making process in the period between formal Treaty changes. Not only does the argument that Treaty texts faithfully implement member state interests seem at odds with much of the existing empirical evidence; it implicitly rests on the contestable theoretical assumption that the principals in complex principal–agent relationships can draft complete contracts which