Showing papers on "Constitution published in 2014"

Intergovernmentalism and Its Limits: Assessing the European Union's Answer to the Euro Crisis

Abstract: The Lisbon Treaty has institutionalized a dual constitution, supranational in the single market’s policies and intergovernmental in (among others) economic and financial policies. The extremely complex system of economic governance set up for answering the euro crisis has been defined and implemented on the basis of the intergovernmental constitution of the EU. The euro crisis has thus represented a test for the validity of the intergovernmental constitution of the Lisbon Treaty. Although the measures adopted in the period 2010-2012, consisting of legislative decisions and new intergovernmental treaties, are of an unprecedented magnitude, they were nevertheless unable to promote effective and legitimate solutions for dealing with the financial crisis. In the context of an existential challenge, the intergovernmental approach faced a structural difficulty in solving basic dilemmas of collective action.

The Islamic State

Abstract: Max Weber argued that ‘only the Occident knows the state in the modern sense, with a constitution, specialised officialdom and the concept of citizenship. Beginnings of this in antiquity and in the Orient were never able to fully develop.’1 Weber’s perception of the non-Western pre-modern world suggests a lack of sophistication in forms of political organisation prior to the development of nation-states. However, this may not be an entirely valid assumption. The nation-state exists as the most contemporary and powerful manifestation of the concept of sovereignty and political order. The nation-state is not, however, unchallenged. Historians suspect that the first ‘states’ began to form in Mesopotamia around 3500 BCE, created by the Sumerian civilisation. Despite the structure of these states looking dramatically different from the modern state, this still suggests the beginnings of a political order.2 Indeed, as Bernard Lewis observes, ‘the bureaucratic state is probably older in the Middle East than anywhere else in the world’.3 Ideas regarding sovereignty, the state and legitimacy are intimately linked. They are relevant in attempting to conceptualise both the contemporary international system, which has its basis in the Western tradition, as well as the Salafi Jihadist notion of order based on the Islamic tradition.

Citizenship Between Empire and Nation : Remaking France and French Africa, 1945-1960

Abstract: List of Illustrations vii Preface ix Notes on Language and Abbreviations xv Introduction 1 Chapter 1 From French Empire to French Union 26 Chapter 2 A Constitution for an Empire of Citizens 67 Chapter 3 Defining Citizenship, 1946-1956 124 Chapter 4 Claiming Citizenship: French West Africa, 1946-1956 165 Chapter 5 Reframing France: The Loi-Cadre and African Federalism, 1956-1957 214 Chapter 6 From Overseas Territory to Member State: Constitution and Conflict, 1958 279 Chapter 7 Unity and Division in Africa and France, 1958-1959 326 Chapter 8 Becoming National 372 Conclusion 431 Bibliography 449 Index 467

National Museums and Nation-building in Europe 1750-2010 : Mobilization and legitimacy, continuity and change

Abstract: Introduction 1. Towards a Typology: the changing roles of Art Museums 2. Cultural History Museums and the making of Citizens and Communities 3. National Museums in between Regionalism, Nationalism and Imperialism, 1750 - 1914 4. Post-imperial Nations: new states, new borders and new unions 1914-2010 5. Conflicted Histories: museums, nations, empires, religions 6. National Museums and National Symbols: searching for the 'symbolic regimes' of Europe Conclusion: The National Museum as a Cultural Constitution

Constitutionalism and Secession

Abstract: The Soviet Constitution guarantees a right to secede. The American Constitution does not. Although some secessionists in the American South, invoking state sovereignty, claimed to find an implicit right to secede in the founding document, it was more common to invoke an extratextual and nonjusticiable "right to secede" said to be enshrined in the Declaration of Independence. In any case, no serious scholar or politician now argues that a right to secede exists under American constitutional law. It is generally agreed that such a right would undermine the Madisonian spirit of the original document, one that encourages the development of constitutional provisions that prevent the defeat of the basic enterprise. Eastern European countries are now deciding about the contents of proposed constitutions. They are often doing so in the context of profound cultural and ethnic divisions, both often defined at least roughly in territorial terms. These divisions have propelled claims for local self-determination that could readily be transformed into attempts to guarantee a right to secede or even into secession itself. In Eastern Europe in particular, debates over the right to secede have already played an extraordinarily important role in discussions of new institutional arrangements. Various political actors have vigorously asserted a right to secede in Yugoslavia, the Soviet Union, and the Czech and Slovak Republics. Active secession movements have played a central role in current efforts to establish democratic governance. Such movements have led to claims for a constitutional right to secede, paralleling the Soviet right but to be respected in practice. A draft of the Slovak constitution, for example, creates a right to secede. It is likely that these claims will be asserted all the more vigorously in the future. The claims for secession, or for a right to secede, raise exceptionally large questions about the theory and practice of constitutionalism. It is therefore an especially important time to explore the relationship between secession claims and constitutionalism in general. My principal claim in this essay is that whether or not secession might be justified as a matter of politics or morality, constitutions ought not to include a right to secede. To place such a right in a founding document would increase the risks of ethnic and factional struggle; reduce the prospects for compromise and deliberation in government; raise dramatically the stakes of day-to-day political decisions; introduce irrelevant and illegitimate considerations into those decisions; create dangers of blackmail, strategic behavior, and exploitation; and, most generally, endanger the prospects for long-term self-governance. Constitutionalism, embodying as it does a set of precommitment strategies, is frequently directed against risks of precisely this sort. Political or moral claims for secession are frequently powerful, but they do not justify constitutional recognition of a secession right. The principal argument for recognition of a right to secede is that it would operate as a powerful deterrent to oppressive and discriminatory practices, and also serve as an effective remedy for these practices. Usually, however, these goals can be promoted through other, more direct means. If they cannot be, a negotiated agreement embodying secession or a right of revolution-also not recognized in founding texts-is a preferable safeguard. The opportunity for a negotiated agreement or a right of revolution would provide a remedy against most of the relevant abuses without raising the continuous risks to self-government that would be created by a constitutional right to secede. In the process of making this argument, I hope also to disentangle the various possible grounds for a moral claim to secession and to indicate which of those grounds have force in different contexts. Some of the discussion will provide support for the view that secession is often justified as a matter of political morality. In such cases I argue against national efforts to stop secession through military or other action. In Part I, I discuss constitutions as precommitment strategies, designed to foreclose debate over certain fundamental questions. These strategies should often be seen as enabling rather than constraining, that is, as devices not only for limiting government, but also for facilitating the difficult process of self-government. This argument has powerful roots in the American constitutional tradition and applies with particular force in the context of secession. The argument also has general implications for the theory of what does and does not belong in constitutions. This theory remains in a surprisingly primitive state, and I will venture some preliminary remarks on the subject. In Part II, I discuss reasons why a subunit of a nation might want to secede, and provide a brief assessment of those reasons as a matter of political morality. My conclusion is that those reasons often create a strong moral claim for secession. Even when this is so, however, the creation of a right to secede in a founding document is usually unjustified. Part III discusses qualified rights to secession, arguing that even though these are superior to a general right of exit for subunits, they are inferior to an across-the-board waiver of that right by all subunits in a nation.

Aztec Philosophy: Understanding a World in Motion

Abstract: James Maffie reveals a highly sophisticated and systematic Aztec philosophy worthy of consideration alongside European philosophies of their time. Bringing together the fields of comparative world philosophy and Mesoamerican studies, Maffie excavates the distinctly philosophical aspects of Aztec thought. 'Aztec Philosophy' focuses on the ways Aztec metaphysics -- the Aztecs understanding of the nature, structure and constitution of reality -- underpinned Aztec thinking about wisdom, ethics, politics, and aesthetics, and served as a backdrop for Aztec religious practices as well as everyday activities such as weaving, farming, and warfare. Aztec metaphysicians conceived reality and cosmos as a grand, ongoing process of weaving -- theirs was a world in motion. Drawing upon linguistic, ethnohistorical, archaeological, historical, and contemporary ethnographic evidence, Maffie argues that Aztec metaphysics maintained a processive, transformational, and non-hierarchical view of reality, time, and existence along with a pantheistic theology. 'Aztec Philosophy' will be of great interest to Mesoamericanists, philosophers, religionists, folklorists, and Latin Americanists as well as students of indigenous philosophy, religion, and art of the Americas.

Food sovereignty in Ecuador: peasant struggles and the challenge of institutionalization

Abstract: The Ecuadorian Constitution (2008) declared food sovereignty a strategic goal and a government obligation, embracing many of the proposals put forth since the late 1990s by Ecuadorian federations linked to Via Campesina. The issue of food sovereignty has expanded from the inner circles of peasant organizations to the wider context of the whole Ecuadorian society. The paper provides an overview of this process, describing the collective actions that made it possible. Moreover, it attempts to explain the reasons why the ‘Agrarian Revolution’ is currently evaluated as weak, and the motivations for a gap between constitutional mandates and the ongoing official policies.

Polyphony, Ventriloquism, and Constitution: In Dialogue with Bakhtin

Abstract: Although Bakhtin's ideas have been mainly explored in the realm of literature and linguistics, his ideas of ventriloquation and polyphony could be mobilized to study the communicative constitution of reality, more generally. Using an excerpt taken from a conversation between two administrators, we show how various forms of ventriloquism actualize themselves in what they say and the way they say it. This kind of analysis amounts to questioning our traditional way of conceiving of discourse and interaction in general, especially in terms of their roles in the constitution of our world. The world we live in is a speaking and personified world; a world that comes to speak through us because people make it speak in a specific way.

The Cambridge Companion to the Roman Republic

Abstract: Introduction to the second edition Introduction to the first edition Part I. Political and Military History: 1. The early Republic S. P. Oakley 2. Power and process under the republican 'constitution' T. Corey Brennan 3. The Roman army and navy David Potter 4. The crisis of the Republic Jurgen von Ungern-Sternberg Part II. Roman Society: 5. Under Roman roofs: family, house, and household Karl-Joachim Hoelkeskamp 6. Women in the Roman Republic Phyllis Culham 7. Population Saskia Hin 8. The Republican economy and Roman law: regulation, promotion, or reflection? Jean-Jacques Aubert 9. The great transformation: slavery and the free Republic Brent D. Shaw 10. Roman religion Joerg Rupke Part III. Rome's Empire: 11. Italy and the Roman Republic 338-331 BC Kathryn Lomas 12. Rome and Carthage John F. Lazenby 13. Rome and the Greek world Erich S. Gruen 14. The rise of empire in the West (264-250 BC) Josiah Osgood Part IV. Roman Culture: 15. Literature in the Roman Republic Elaine Fantham 16. Roman art during the Republic Ann L. Kuttner 17. Spectacle and political culture in the Roman Republic Harriet I. Flower Part V. Epilogue: The Influence of the Roman Republic: 18. The Roman Republic and the French and American Revolutions Mortimer N. S. Sellers.

Suburbs under Siege: Race, Space, and Audacious Judges

Abstract: In "Suburbs under Siege" Charles Haar argues passionately that all people - rich or poor, black or white - have a constitutional right to live in the suburbs and that a socially responsible judiciary should vigorously uphold that right. For various reasons, American courts have generally failed to question local zoning regulations that trap the urban poor in the squalor of inner cities, away from decent housing and jobs in the suburbs. No U.S. Supreme Court case, for instance, has confronted exclusionary zoning rules, as Brown v. Board of Education once attacked school segregation. Instead, judges at all levels have most often reinforced the residential segregation that may well destroy American society. In this provocative book on the landmark Mount Laurel cases, Haar shows how the N.J. state judiciary broke out of this pattern of judicial behaviour. These courageous, innovative judges attracted nationwide attention by challenging the forces of affluence that ruled the suburbs (and the legislature) of their state. Furthermore, they based their reasoning on the N.J. state constitution in order to protect their rulings from in-validation by the U.S. Supreme Court. In the early 1970s, when the cases began, the plaintiffs, Ethel Lawrence and her daughter Thomasene, were barely making ends meet in the Philadelphia suburb of Mount Laurel, a town where their African-American ancestors had lived for seven generations. The Lawrences' dream was to live in a Mount Laurel garden apartment planned by a grassroots reform group as affordable housing: in their way stood a typical minimum acreage zoning ordinance. The eventual court victory of the Lawrences and their young public interest attorneys inspired other N.J. suits and a process of remediation that continues to this day, as judges, experts (special masters), the state legislature, and other citizens work to carry out the Mount Laurel principles. Haar's book is a bold attack on conventional doctrines of the separation of powers limitations on the judicial branch and a plea that judges across the country assume their proper responsibilities for fair housing before it is too late.

The Awakening of Muslim Democracy: Religion, Modernity, and the State

Abstract: Part I. The Making of Islam as a Modern Religion: 1. Modernization and politicization of religion 2. Nation-state building and the inclusion of Muslim polities within the Westphalian order 3. Islam in the constitution 4. Nationalization of Islamic institutions and clerics 5. Islam in the legal system 6. Teaching Islam in public schools Part II. Islamism as the Central Political Force Pre- and Post-Arab Spring: 7. Political opposition through Islamic institutions 8. Ideological strength of Islamist opposition 9. From martyrs to rulers Part III. The Disjunction of Democracy and Secularism - Lessons Learned from the Arab Spring: 10. The rise of unsecular democracies: the conundrum of religious freedom in Muslim democracies 11. The way forward: the role of Islam in future democratizations Conclusion. The tragedy of modernity.

Repoliticising depoliticisation : Theoretical preliminaries on some responses to the American fiscal and Eurozone debt crises

Abstract: Politicisation, depoliticisation, and repoliticisation are basic and interrelated concepts in political analysis. They may also describe specific political strategies in relatively stable, turbulent or crisisprone periods or concrete conjunctures. This article aims to clarify the chameleon-like concept of depoliticisation by distinguishing its different levels and forms. It also applies these distinctions to two cases of 'depoliticisation' in the fiscal politics of the North Atlantic Financial Crisis (NAFC). The magnitude, duration, and depth of this crisis have prompted an intriguing mix of de- and repoliticisation strategies. These are evident in the manufactured hysteria about the 'fiscal cliff' in the USA and the attempts to impose technocratic government and a new economic constitution in the Eurozone. The conclusion offers some general reflections.

Iraq's Descent into Civil War: A Constitutional Explanation

Abstract: In the summer of 2014, the Iraqi government lost control of much of the country. Insurgents - including the Islamic State of Iraq and al-Sham (ISIS), former Ba 'thists, and an array of Sunni tribes - captured Mosul, and then much of western Iraq. Although complex factors lay behind these developments, this article focuses on one theme of central importance: attempts to consolidate power in Baghdad and the concomitant evisceration of Iraq 's constitution. When key provisions of a very decentralizing federal constitution were ignored or violated, the blowback from disenfranch ised groups in Iraq brough t the country to the brink of collapse.In early June 2014, the Islamic State of Iraq and al-Sham (ISIS) and a constellation of Sunni Arab tribes and former Ba'thists captured Mosul, Iraq's second largest city. Much of the Iraqi Armed Forces disintegrated, and the rest fled southward from the Sunni rebel advance.1 As most of the majority-Sunni Arab areas of the country quickly fell to the insurgents, Prime Minister Nuri al-Maliki's government scrambled to fortify Baghdad's defenses. Peshmerga (Kurdish fighters) of the Kurdistan Regional Government (KRG), meanwhile, took the opportunity to advance farther south and take control of virtually all the territories disputed between Erbil and Baghdad, including Kirkuk, which has some four percent of the world's proven oil reserves around it. As authorities in Baghdad stmggled to mount a response to the breathtaking developments, ISIS declared the establishment of a new Islamic caliphate straddling Syria and Iraq, and the KRG announced their intention to hold a referendum for Kurdish independence.2 More than ever before, the dissolution of Iraq suddenly appeared both likely and imminent.What precipitated such a collapse of one of the most important states in the Middle East and North Africa region? Rather than seeing a predetermined fate that doomed Iraq after the toppling of President Saddam Husayn, the explanation provided here focuses on agency - choices made within a structural context that offered real alternatives. The stmctural context presented huge difficulties to be sure, with a society and political system ravaged by wars, neighboring states meddling in Iraq, and a civil war raging next door in Syria since 2011. But explanatory weight needs to be assigned to the choices that Iraqi prime minister Nuri al-Maliki and his administration made over the last several years as well. Although Prime Minister Maliki likely pursued his poli- cies with the best intentions, the highest authorities of a state bear the greatest onus to strengthen, not weaken, its constitutional foundations. While many people warned that the 2005 Iraqi constitution's strongly decentralizing provisions could threaten Iraqi territorial integrity, subsequent developments and the current crisis demonstrate the opposite: key elements of the Constitution's robust provisions for decentralization and power-sharing were never respected, leading to the total alienation of Iraq's disparate Sunni Arab and Kurdish populations. Even some Iraqi Shi'i political groups appear dis- affected today,3 reviving old militias to oppose Baghdad's authority. As Prime Minister Maliki assiduously worked to concentrate power in his own hands, American policy makers continued to back him almost unconditionally. In doing so, they squandered the blood and staggering sums of money spent rebuilding Iraq.The following pages provide an overview of the key components of the Iraqi con- stitution that Prime Minister Maliki's administration eviscerated. While an exhaustive treatment of all the varied factors that led to the current crisis in Iraq remains impossi- ble to provide here, it is the author's contention that the 2005 Iraqi constitution, despite its necessary ambiguities on many issues, provided a legal and political structure that could have led the country to a much more propitious future. This would also have re- quired wise and inclusive leadership in Baghdad, of course. …

Beyond Presidentialism and Parliamentarism

Abstract: The presidential-parliamentary distinction is foundational to comparative politics and at the center of a large theoretical and empirical literature. However, an examination of constitutional texts suggests a fair degree of heterogeneity within these categories with respect to important institutional attributes. These observations indicate that the classic presidential-parliamentary distinction, and the semi-presidential category, may not be systemic. This article investigates whether the defining attributes that separate presidential and parliamentary constitutions predict other attributes that are stereotypically associated with these institutional models. The results suggest the need for considerable skepticism of the ‘systemic’ nature of the classification. Indeed, the results imply that in order to predict the powers of a country's executive and legislature, it is more useful to know where and when the constitution was written than whether the country has a presidential or parliamentary system.

Rule Over None I: What Justifies Democracy?

Abstract: Ordinary political discourse, at least in the West, scarcely questions that we are to live in a democracy, where social decisions will ultimately be controlled by some principle of “one person, one vote.” As fierce as debates over law or policy may be, those debates take place against a background assumption that, in the end, the question will be resolved by democratic means. If the question is not decided by popular referendum, then it is decided by officials, or their appointees, elected through a process that respects some recognizable form of political equality. Indeed, these offices and processes may depend on a constitution that is itself open to popular amendment. An alternative form of rule, where social decisions would be made by an unchosen class, whether defined by birth, or virtue, or training, is not so much as seriously contemplated.

Libertarian Separation of Powers

Abstract: The Constitution’s distribution of power among three branches of the federal government is valued because it aims to produce some bundle of valuable social or public goods such as democracy, rights, or welfare. This essay examines the interaction between constitutional structure and those goods a libertarian might pursue. Analyzing the options for both a constitutional designer and a constitutional interpreter, it suggests that first-order preferences over liberty fail to translate into structural design maxims in any mechanical or predictable way.

Global Environmental Constitutionalism

Abstract: Reflecting a global trend, scores of countries have affirmed that their citizens are entitled to healthy air, water and land, and that their constitution should guarantee certain environmental rights. This book examines the increasing recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts. This phenomenon, which the authors call environmental constitutionalism, represents the confluence of constitutional law, international law, human rights and environmental law. National apex and constitutional courts are exhibiting a growing interest in environmental rights, and as courts become more aware of what their peers are doing, this momentum is likely to increase. This book explains why such provisions came into being, how they are expressed, and the extent to which they have been, and might be, enforced judicially. It is a singular resource for evaluating the content of and hope for constitutional environmental rights.

The Function of Article V

Abstract: What good is Article V? The Constitution’s amendment rule renders the text inflexible, countermajoritarian, and insensitive to important contemporary constituencies. Comparative empirical studies, moreover, show that textual rigidity is not only rare in other countries’ organic documents but highly correlated with constitutional failure. To promote our Constitution’s survival and to counteract Article V’s ‘dead hand’ effect, commentators argue, Americans have turned to informal amendment through the courts or ‘super’ statutes. Article V, the conventional wisdom goes, is a dead letter. Against this pervasive skepticism, I propose that Article V instead played an important but hitherto unrecognized function in the early Republic. Article V mitigated a ‘hold up’ dilemma that could have precluded ratification and undermined the new Constitution’s stability. By hindering strategic deployment of textual amendment, Article V-induced rigidity fostered a virtuous circle of investment in new institutions such as political parties and financial infrastructure. Recognition of Article V’s role in the early Republic leads to a more nuanced view of the Constitution’s amendatory regime. In effect, we have a two-speed Constitution — with Article V-induced rigidity at the inception supplemented gradually over time by informal judicial or statutory amendment protocols.

The Citizenship Revolution: Politics and the Creation of the American Union, 1774-1804

Abstract: Most Americans believe that the ratification of the Constitution in 1788 marked the settlement of post-Revolutionary disputes over the meanings of rights, democracy, and sovereignty in the new nation. In The Citizenship Revolution, Douglas Bradburn undercuts this view by showing that the Union, not the Nation, was the most important product of independence. In 1774, everyone in British North America was a subject of King George and Parliament. In 1776 a number of newly independent "states," composed of "American citizens" began cobbling together a Union to fight their former fellow countrymen. But who was an American? What did it mean to be a "citizen" and not a "subject"? And why did it matter? Bradburn's stunning reinterpretation requires us to rethink the traditional chronologies and stories of the American Revolutionary experience. He places battles over the meaning of "citizenship" in law and in politics at the centre of the narrative. He shows that the new political community ultimately discovered that it was not really a "Nation," but a "Union of States"--and that it was the states that set the boundaries of belonging and the very character of rights, for citizens and everyone else. To those inclined to believe that the ratification of the Constitution assured the importance of national authority and law in the lives of American people, the emphasis on the significance and power of the states as the arbiter of American rights and the character of nationhood may seem strange. But, as Bradburn argues, state control of the ultimate meaning of American citizenship represented the first stable outcome of the crisis of authority, allegiance, and identity that had exploded in the American Revolution--a political settlement delicately reached in the first years of the nineteenth century. So ended the first great phase of the American citizenship revolution: a continuing struggle to reconcile the promise of revolutionary equality with the pressing and sometimes competing demands of law, order, and the pursuit of happiness.

The Royalist Revolution: Monarchy and the American Founding

Abstract: Generations of students have been taught that the American Revolution was a revolt against royal tyranny. In this revisionist account, Eric Nelson argues that a great many of our founding fathers saw themselves as rebels against the British Parliament, not the Crown. "The Royalist Revolution" interprets the patriot campaign of the 1770s as an insurrection in favor of royal power driven by the conviction that the Lords and Commons had usurped the just prerogatives of the monarch.Leading patriots believed that the colonies were the king s own to govern, and they urged George III to defy Parliament and rule directly. These theorists were proposing to turn back the clock on the English constitution, rejecting the Whig settlement that had secured the supremacy of Parliament after the Glorious Revolution. Instead, they embraced the political theory of those who had waged the last great campaign against Parliament s usurpations: the reviled Stuart monarchs of the seventeenth century.When it came time to design the state and federal constitutions, the very same figures who had defended this expansive conception of royal authority John Adams, Alexander Hamilton, James Wilson, and their allies returned to the fray as champions of a single executive vested with sweeping prerogatives. As a result of their labors, the Constitution of 1787 would assign its new president far more power than any British monarch had wielded for almost a hundred years. On one side of the Atlantic, Nelson concludes, there would be kings without monarchy; on the other, monarchy without kings."

Prospects for an Independent Catalonia

Abstract: The aim of this paper is to examine the factors that have triggered the recent shift from devolution to secession expressed by the Catalan grassroots movement which has been consolidated in the last 5 years or so. This movement stands in favour of the so-called ‘right to decide’ which specifically demands the right of Catalan citizens to be considered as a ‘demos’ able to decide upon its political future by means of holding a referendum on the issue. Conflict has emerged as a result of the Spanish state’s prohibition to allow for a referendum on that issue. The paper offers an overview of the origins of modern Catalan nationalism by tracing back its roots to Franco’s dictatorship and the subsequent transition to democracy. It analyses the main arguments behind the qualitative shift from devolution to secession embodied in the rise of a novel bottom up secessionist movement supporting the idea of holding a referendum on Catalan independence from Spain; so far, strictly forbidden by the Spanish State. The paper considers the impediments to a ‘referendum’ on Catalan independence founded upon the Spanish Constitution. To conclude, it examines the rise of a novel grassroots civil society movement demanding the right of Catalonia to decide upon its political future.

Coasean Bargaining over the Structural Constitution

Abstract: The Constitution allocates entitlements to individuals and also institutions such as states and branches. It is familiar fare that individuals’ entitlements are routinely deployed not only as shields against unconstitutional action, but also as bargaining chips when negotiating with the state. By contrast, the possibility that branches and states could bargain over structural entitlements has largely escaped scholarly or judicial attention. Yet institutional negotiation over federalism and separation-of-powers interests is both endemic and unavoidable. To ascertain when such negotiation should be allowed, this Article develops a general theory of negotiated structural arrangements by leveraging doctrinal, economic and political theory insights. Negotiated structural outcomes, the Article concludes, should be deemed constitutional absent a clear demonstration of negative externalities or paternalism-warranting ‘internalities.’

Economic and Social Rights in National Constitutions

Abstract: Much has been written about the global convergence on constitutional supremacy, and the corresponding rise of an apparently universal constitutional discourse, primarily visible in the context of rights. In this Paper, we examine the global constitutional homogeneity claim with respect to economic and social rights. Based on a new and unique dataset that identifies the status of sixteen distinct economic and social rights in the world's constitutions (195 in total), we make four arguments. First, although economic and social rights (ESRs) have grown increasingly common in national constitutions, not all ESRs are equally widespread. Whereas a right to education is so common as to be practically universal, a right to food and water is still very rare. Second, constitutions accord ESRs different statuses, or strengths. More than some one-third of countries identify all economic and social rights as justiciable, another third identify some ESRs as aspirational and some as justiciable, and the last third identify ESRs as aspirational or entrench fewer than two. Third, legal tradition— whether a country has a tradition of civil, common, Islamic, or customary law— is a strong predictor of whether a constitution will have economic and social rights and whether those rights will be justiciable. Fourth, whereas regional differences partly confound the explanatory power of legal traditions, region and legal tradition retain an independent effect on constitutional entrenchment of ESR. We conclude by suggesting that despite the prevalence of economic and social rights in national constitutions, as of 2013 there is still considerable variance with respect to the formal status, scope and nature of such rights. Because the divergence reflects lasting determinants such as legal tradition and region, it is likely to persist.

The Cosmopolitan Constitution

Abstract: Introduction 1. One Point Zero: Powers 2. Two Point Zero: Recognition 3. Dignity and Emancipation 4. Three Point Zero: Transcendence 5. The Two Faces of the Cosmopolitan Constitution

Implementing the Constitution

Abstract: This text argues that the Supreme Court performs two functions. The first is to identify the Constitution's idealized "meaning". The second is to develop tests and doctrines to realize that meaning in practice. Bridging the gap between the two - implementing the Constitution - requires moral vision, but also practical wisdom and common sense, ingenuity, and occasionally a willingness to make compromises. In emphasizing the Court's responsibility to make practical judgments, "Implementing the Constitution" takes issue with the two positions that have dominated recent debates about the Court's proper role. Constitutional "originalists" maintain that the Court's essential function is to identify the "original understanding" of constitutional language and then apply it deductively to current problems. This position is both unwise and unworkable, the book argues. It also critiques well-known accounts according to which the Court is concerned almost exclusively with matters of moral and constitutional principle. The book bridges the worlds of constitutional theory, political theory, and constitutional practice. It illuminates the Supreme Court's decision of actual cases and its development of well-known doctrines. It is a doctrinal study that yields jurisprudential insights and a contribution to constitutional theory that is closely tied to actual judicial practice.

Equal or complementary? Women in the new Tunisian Constitution after the Arab Spring

Abstract: The Arab Spring has inaugurated a new form of politics that represents a shift from a ‘politics from above’ to a ‘politics from below’ in regard to gender policy in Tunisia. Discourse surrounding state policy on gender, formerly the purview of elite groups, has recently been shaped and driven by popular organisations and associations. This article draws on Habermas to argue that the shift has been facilitated by the emergence of a new public sphere and engaged civil society following the fall of the Zine El Abidine Ben Ali regime in 2011. To demonstrate the emergence and diversity of Tunisian civil society, we focus on the promulgation of a new constitution and the debate surrounding Article 28, which has been contested by some Tunisians as reducing women's status to ‘complementary’. A discussion of women's status in the history of Tunisian family law, especially in the popularly valorised Code of Personal Status, illustrates how women's rights were historically expanded as a top-down policy or ‘politics ...