Showing papers on "Constitutional law published in 2010"

From Disgust to Humanity: Sexual Orientation and Constitutional Law

Abstract: The title of Martha Nussbaum‘s recent book From Disgust to Humanity: Sexual Orientation and Constitutional Law encapsulates well the book‘s normative and descriptive claims. In Nussbaum‘s descriptive account, the politics of disgust have been and remain at the root of all opposition to recognition of legal rights for homosexuals, whether the issue be sodomy laws, discrimination on the basis of sexual orientation, same-sex marriage or venues for public sex. Although she acknowledges that explicit appeals to disgust have declined in recent years, Nussbaum argues that disgust "has not gone away, it has gone underground." In Nussbaum‘s normative view, disgust not only should be ruled categorically out of bounds as a basis for law and policy, but must be thoroughly extirpated and replaced with a "politics of humanity" involving not only sympathy, imagination, and respect, but "something else, something closer to love."From the moment early in its conception when she first sought my input on this new book, I had to confess myself troubled by its central claims, given my own very different take on the constitutional law of sexual orientation. As I shall explain in this essay, it seems to me that From Disgust to Humanity descriptively accounts for too little and normatively asks for too much. Although I am a lawyer and not a moral philosopher, I shall begin by questioning the more philosophical, less legal aspect of Nussbaum‘s normative claims before moving on to give an alternate account of developments in the law.First let me ask, what is the minimum Nussbaum now demands of the opponents of homosexuality? From this overarching question a number of subsidiary questions arise. These include: If disgust has indeed, as Nussbaum acknowledges,"gone underground" in contemporary debates about gay rights, is this a bad thing? If disgust is out-of-bounds, is there, in Nussbaum‘s view, a more appropriate emotion for opponents of homosexuality to mobilize in aid of their opposition? Or is Nussbaum in effect demanding nothing short of complete capitulation from them?

The Twilight of Constitutionalism

Abstract: INTRODUCTION PART I: CONSTITUTIONALISM AND THE EROSION OF STATEHOOD 1. The Achievement of Constitutionalism and its Prospects in a Changed World 2. Disconnecting Constitutions from Statehood: Is Global Constitutionalism a Viable Concept? 3. What is Constitutionalisation? PART II: THE QUESTION OF EUROPE 4. European Governance: Governing with or without the State? 5. Legitimacy in the Multi-level European Polity 6. Constitutionalism and Representation: European Parliamentarism in the Treaty of Lisbon PART III: CONSTITUTIONALISM WITHOUT DEMOCRACY? 7. More Law, Less Democracy? Democracy and Transnational Constitutionalism 8. On Constitutional Membership 9. Constitutionalism and Democracy in the World Society PART IV: CONSTITUTIONAL LAW AND PUBLIC INTERNATIONAL LAW 10. The Best of Times and the Worst of Times: Between Constitutional Triumphalism and Nostalgia 11. In Defence of 'Constitution' PART V: GLOBAL ADMINISTRATIVE LAW: A VIABLE SUBSTITUTE? 12. Global Administrative Law and the Constitutional Ambition 13. Administration without Sovereignty PART VI: THE EMERGENCE OF SOCIETAL CONSTITUTIONALISM 14. Beyond the Holistic Constitution? 15. The Morphogenesis of Constitutionalism 16. Fragmented Foundations: Societal Constitutionalism beyond the Nation State

Constitutional Design for Divided Societies. Integration or Accommodation

Abstract: Constitutional Design for Divided Societies: Integration or Accommodation? raises important conceptual questions of consociational theory and powersharing mechanisms and tests them against a wide range of regional case studies from Europe, Africa and Asia. The axiomatic, underlying interest for analysis is the question: how can and should culturally divided societies be politically managed, not the least through constitutional arrangements? All of the articles are based on the conceptual distinction of “integration” versus “accomodation” as a follow-up to the Lijphart-Horowitz debate. However, the main achievement of the book is the insight into the necessity to de-construct this conceptual dichotomy and to develop better refinements by bridging the gap between comparative politics and comparative constitutional law. In the end the book thus provides fresh food for thought on how to reconcile consociational theory and powersharing mechanisms with the problems of self-determination disputes usually overlooked by the former concepts.

Parchment and Politics: The Positive Puzzle of Constitutional Commitment

Abstract: Constitutionalism is often analogized to Ulysses binding himself to the mast in order to resist the fatal call of the Sirens. But what is the equivalent of Ulysses’s ropes that might enable a political community to bind itself to constitutional rules? The positive puzzle of constitutionalism lies in explaining the willingness and ability of powerful political actors to make sustainable commitments to abiding by and upholding constitutional rules even when these rules stand in the way of their immediate interests. Why, for example, would a popular President choose to abide by constitutional limitations on conducting what he and the majority of the country that supports him believe to be a vitally necessary war to preserve the Union or to fight terrorism; to save the country from the Great Depression or the collapse of the financial system? The puzzle generalizes to how intertemporal political commitments of any sort are possible. We might wonder, along similar lines, how a political community can credibly and durably commit itself to repaying its debts, refusing to bail out financially reckless banks, or refraining from war. A standard approach to answering such questions in both legal and political contexts is to invoke stable “institutions” of various kinds as reliable commitment mechanisms. Courts can enforce constitutional norms. Structural arrangements like federalism, separation of powers, democracy, and delegation can raise the cost of political change or stack the deck in favor of particular outcomes. And of course constitutions are commonly cast as somehow self-enforcing guarantors of political commitments. But this explanatory approach just pushes the puzzle back to how these institutions become impervious to socio-political revision or override. Why should we expect institutional commitment devices to be any more stable than the first-order commitments they are supposed to facilitate? Understanding how constitutions and other institutions can effectively constrain politics remains a fundamentally important theoretical challenge in law and the social sciences. This article demonstrates the generality of that challenge and explores its implications for constitutional law and theory. The article also attempts to make progress in explaining how, and in what contexts, successful legal and political commitment may be possible by consolidating a set of mechanisms through which legal and political arrangements - prominently including systems of constitutional law, the constitutional structure of government, and judicial review - can become entrenched against opposition and change.

Proportionality and the Culture of Justification

Abstract: This article reviews several functional explanations that have been given to the dramatic spread of proportionality (early legal development, conflict management, lingua franca, and raw judicial power) and suggests an intrinsic one. Proportionality, we believe, is essentially a requirement for justification, which represents a profound shift in constitutional law on a global level. We characterize this, following South African scholar Etienne Mureinik, as a shift from a culture of authority to a culture of justification. At its core, a culture of justification requires that governments should provide substantive justification for all their actions, by which we mean justification in terms of the rationality and reasonableness of every action and the trade-offs that every action necessarily involves, i.e., in terms of proportionality. We identify several features of Western constitutional systems that have evolved after World War II, and that support the culture of justification. These include a broad conception of rights, a broad approach to constitutional interpretation with an emphasis on principles and values rather than on text, low barriers to substantive review, and no legal “black holes” (areas and actions with respect to which government needs to provide no justification). Most importantly in terms of our review, it involves a two-stage form of judicial review, identifying the infringement of the right, and justifying the infringement, with an emphasis on the second stage of justification. We also suggest two preliminary historical explanations for the rise of the culture of justification. One is its connection to the rise of the human rights ideology which developed after WWII, and which provided a response to the threats of nationalism and populism. The other is its roots in the optimistic belief in rationality and reason that can be traced to the nineteenth-century German legal science movement. We end our review by characterizing the gradual shift towards proportionality and the culture of justification as a shift towards an administrative model of constitutional law, which we term the “administrization” of constitutional law.

International Investment Law and Comparative Public Law

Abstract: PART I - CONCEPTS AND FOUNDATIONS PART II - INVESTOR RIGHTS IN COMPARATIVE PERSPECTIVE PART III - COMPARATIVE ADMINISTRATIVE AND COMPARATIVE CONSTITUTIONAL LAW ON SELECTED ISSUES PART IV - DISPUTE SETTLEMENT, ARBITRAL PROCEDURE, AND REMEDIES

Immigration Detention and Human Rights. Rethinking Territorial Sovereignty

Abstract: Practices of immigration detention in Europe are largely resistant to conventional forms of legal correction. By rethinking the notion of territorial sovereignty in modern constitutionalism, this book puts forward a solution to the problem of legally permissive immigration detention.

National and constitutional identity before and after Lisbon

Abstract: This essay seeks to reflect on how the conscious political effort to overcome the divisiveness caused by Member States' idiosyncracies has matured into the constitutional recognition of Member State identities as essential to the European project. Central findings concern the particular twist from 'national identity' to 'constitutional identity' in the Lisbon Treaty. This can be considered a codification of the case law of some of the Member State constitutional courts. This implies that, whereas the Lisbon Treaty failed to incorporate a 'supremacy clause' on the priority of EU law over conflicting Member State law, it has indeed formulated a legally binding rule on the priority of certain Member State constitutional law over EU law. The more precise contours of this priority have already become the object of controversial ECJ case law. This essay explains why this European controversy must necessarily remain open-ended, based as it is on tolerance, the acceptance of otherness and trust.

National and Constitutional Identity Before and After Lisbon

Abstract: This essay seeks to reflect on how the conscious political effort to overcome the divisiveness caused by Member States' idiosyncracies has matured into the constitutional recognition of Member State identities as essential to the European project. Central findings concern the particular twist from 'national identity' to 'constitutional identity' in the Lisbon Treaty. This can be considered a codification of the case law of some of the Member State constitutional courts. This implies that, whereas the Lisbon Treaty failed to incorporate a 'supremacy clause' on the priority of EU law over conflicting Member State law, it has indeed formulated a legally binding rule on the priority of certain Member State constitutional law over EU law. The more precise contours of this priority have already become the object of controversial ECJ case law. This essay explains why this European controversy must necessarily remain open-ended, based as it is on tolerance, the acceptance of otherness and trust.

The Concept of International Law in the Jurisprudence of H.L.A. Hart

Abstract: This article analyses H.L.A. Hart's concept of international law from the perspective of anaytical jurisprudence and in light of the state of contemporary international law. The article challenges Hart's view that international law is �law� but not a �legal system�. Hart arrives at this conclusion on the basis of a comparison of the international legal order with the municipal legal system. This comparison is distorted by Hart's general focus on private law and criminal law and becomes less convincing when constitutional law is added to the equation. As a consequence, Hart's methodological approach is inconsistent and should be modified. Rather than asking whether international law resembles municipal law in form, it should be asked whether international law encompasses legislative, executive, and judicative structures which are able to perform the same functions as the legal order of a nation state, and which thereby overcome the defects of a primitive social order. Against the background of this modified analytical framework, Hart's analysis is revisited in light of recent developments and changes in the structure of international law at the beginning of the 21st century.

The constitutional allocation of powers and general principles of EU law

Abstract: The present contribution supports the contention that general principles of EU law do not operate as an unstoppable centripetal force at the service of an activist judiciary. Quite the contrary, when having recourse to general principles, the ECJ strives to preserve the vertical and horizontal allocation of powers sought by the authors of the Treaties. Horizontally, the ECJ distinguishes between matters pertaining to the province of constitutional law and those which are subject to legislative discretion. Stated differently, general principles of EU law are applied without encroaching upon the competence of the EU legislature. Vertically, the ECJ is respectful of the constitutional traditions of the Member States but not to the extent of foregoing the basic constitutional tenets of the Union. General principles seek to create a �common constitutional space� where EU and national law engage in a dynamic dialogue which gives rise to a mutual influence between the two levels of governance. Hence, as instruments of constitutional dialogue, general principles facilitate the constant renewal of the EU legal order, epitomising the �EU�s living constitution�. The article examines the horizontal direct effect of general principles, paying attention to the gap-filling function of general principles, and their role in consistent interpretation and as grounds for review, in a situation of constitutional pluralism.

Toward Democratic Consolidation? The Argentine Supreme Court, Judicial Independence, and the Rule of Law

Abstract: Too little attention has been paid to the role of judiciary in strengthening democracy and the rule of law in Latin America, with even less attention on the Argentine judicial system. In this paper, the role of the courts in consolidation will be examined through the Argentine case study. Part I outlines the current state of the literature on democratization and the rule of law with respect to Latin America, while Part II reviews what has been written about the Latin American judiciary and its influence on the rule of law. Part III evaluates the development of the judiciary and the rule of law in Argentina - focusing on the Argentine Supreme Court from its constitutional founding in 1853 through the end of the twentieth century. Part IV then evaluates the current-day Argentine predicament with respect to the Supreme Court's role during the turn-of-the-century economic crisis and President Kirchner's present judicial reform efforts. The lessons learned from the Argentine case study are many and diverse, but several general themes deserve mention: (1) Democratic consolidation takes time to develop, and the judiciary plays an important role as an important horizontal check on presidential and legislative action. (2) Informal institutions and practices are far more important and explanatory than formal institutions. To understand the role of the judiciary in Argentina, one must look beyond court opinions and constitutional text to examine the historical, economic, and political context in which the judiciary functioned. (3) Public trust in a democratic institution is essential for the institution to be able to carry out its duty - in this case, for the judiciary to serve as a primary guardian of the rule of law.

Founding Principles of EU Law. A Theoretical and Doctrinal Sketch

Abstract: The article provides the groundwork for the constitutional law approach to EU legal scholarship. It stresses the special role of the basic principles of the EU legal order, explaining their dimensions, foundations and their functions. First of all, legal principles play a special role in ordering the legal material into a meaningful whole, a function the author entitles doctrinal constructivism. Furthermore, they can supply arguments for the creative application of the law and can at the same time help to maintain and further legal infrastructure. The author also explains their legal and integrative aspects and their constitutional characteristics and illustrates their significance for establishing unity of EU law in light of heterogeneous primary law.

Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

Abstract: This book presents a completely reconfigured understanding of the judicial role in Indian constitutional law. The author presents a completely reconfigured understanding of the judicial role in Indian constitutional law. He lucidly and critically examines the significance and status of the basic structure doctrine today. He addresses the question whether basic structure review is an appropriate exercise of judicial power or an abuse of it. He argues that much of the criticism against the doctrine emerges from a failure to adequately map the contours of constitutional judicial review. He assesses the legitimacy of basic structure review under three categories-legal, moral, and sociological. It critiques the views of major scholars including Seervai, Sathe, Austin, and Baxi. It also analyses the post Kesavananda Bharti cases and studies how the scope of the basic structure doctrine has been expanded by the court. He tries to develop an essential benchmark against which judicial performance may be assessed and the confusions currently inherent in the Indian debate on judicial activism finally eliminated.

Constitutional transfer: The IKEA theory revisited

Abstract: Text books and articles on comparative constitutional law, regardless of their focus or methodological orientation, suggest that constitutions all over the world, at least most of them, come in the form of a single written document that deals with rights and principles, values and duties, organizational provisions, and one or the other type of judicial review. One might infer that most constitutional items that are part and parcel of the theoretical study and practices of constitution making have been standardized; they appear to circulate like marketable goods among the participants of the transnational disciplinary discourse and framers—the constitutional elites, experts, and consultants. One may assume, therefore, that constitutions, though always entangled in a specific local context and informed by its particular political and socioeconomic power constellations and historical traditions, have undergone a process of “globalization.” In this article I want to discuss how such globalization of mindsets and texts comes about. Therefore, I reintroduce the IKEA theory so as to reconstruct how constitutional ideas and norms, institutions and arguments, are transferred from local contexts to what I call the “global constitution” and from there to a host environment. The concept of constitutional transfer requires a brief discussion of the (im)possibility of legal “transplants” and of the risks and side-effects of such transfer.

American balancing and German proportionality: The historical origins

Abstract: American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed as based on American isolationalism and unilateralism. In this article we suggest an original, and often overlooked, explanation to the difference between balancing and proportionality – the historical origins of the two concepts. We examine the ways in which proportionality developed in Germany and balancing in the United States and show that the origins of both concepts were very different. For instance, proportionality was originally developed in administrative law, and was only tangentially (if at all) related to private law, whereas balancing arose in private law and was only later extended to public law; proportionality was created as part of an attempt to protect individual rights, whereas balancing was created for the exact opposite purpose – to check overzealous protection of rights by the Supreme Court during the Lochner era. We suggest that these differences may go a long way in explaining current disparities in attitudes and current barriers to dialogue and convergence between these two concepts.

The political economy of constitutional choice: a study of the 2005 Kenyan constitutional referendum

Abstract: Recent studies of the linkages between the wealth of nations and the institutions of governance suggest that concentrating political power in a monarchy or a ruling coalition impedes economic growth and, moreover, that while power-diffusing reforms can enhance the wellbeing of society in general, opposition by groups benefiting from the status quo is predictable. In November 2005, Kenyans rejected a proposed constitution that, despite promises made by their new chief executive, would not have lessened the powers of the presidency. Using a unique, constituency-level dataset on the referendum vote, we estimate a model of the demand for power diffusion and find that ethnic groups’ voting decisions are influenced by their expected gains and losses from constitutional change. The results also highlight the importance of ethnic divisions in hindering the power-diffusion process, and thus establish a channel through which ethnic fragmentation adversely impacts economic development.

The Preamble in Constitutional Interpretation

Abstract: From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy-making. Through a qualitative analysis of the legal status of preambles in different common law and civil law countries, the Article highlights a recent trend in comparative constitutional law: the growing use of preambles in constitutional adjudication and constitutional design.The Article explores the theory of preambles and their functions. It examines the legal status of the U.S. Preamble. It shows how the U.S. Preamble remains the most neglected section in American constitutional theory. The Article then presents a typology for determining the legal status of preambles: a symbolic preamble, an interpretive preamble, and a substantive preamble. While focusing on Macedonia, the State of Israel, Australia, and the Treaty of Lisbon, the Article discusses the sociological function of preambles in top-down and bottom-up constitutional designs.

Transformative Constitutionalism and the Common and Customary Law

Abstract: A basic assumption of the Constitution, which finds expression in its ‘development clauses’ (ss 8(3) & 39(2)), is that South Africa cannot progress toward a society based on human dignity, equality...

A civilized nation: the early american constitution, the law of nations, and the pursuit of international recognition

Abstract: This article argues, contrary to conventional accounts, that the animating purpose of the American Constitution was to facilitate the admission of the new nation into the European-centered community of “civilized states.” Achieving international recognition - which entailed legal and practical acceptance on an equal footing - was a major aspiration of the founding generation from 1776 through at least the Washington administration in the 1790s, and constitution-making was a key means of realizing that goal. Their experience under the Articles of Confederation led many Americans to conclude that adherence to treaties and the law of nations was a prerequisite to full recognition, but that popular sovereignty, at least as it had been exercised at the state level, threatened to derail the nation’s prospects. When designing the federal Constitution, the framers therefore innovated upon republicanism in a way that balanced their dual commitments to popular sovereignty and earning international respect. The result was a novel and systematic set of constitutional devices designed to ensure that the nation would comply with treaties and the law of nations. These devices, which generally sought to insulate officials responsible for ensuring compliance with the law of nations from popular politics, also signaled to foreign governments the seriousness of the nation’s commitment. At the same time, however, the framers recognized that the participation of the most popular branch in some contexts - most importantly, with respect to the question of war or peace - would be the most effective mechanism for both safeguarding the interests of the people and achieving the Enlightenment aims of the law of nations. After ratification, the founding generation continued to construct the Constitution with an eye toward earning and retaining international recognition, while avoiding the ever-present prospect of war. This anxious and cosmopolitan context is absent from modern understandings of American constitution-making.

EU Constitutional Law: An Introduction

Abstract: 1 What Constitution? A Rose by Any Other Name 2 An Elephant That Cannot Be Defined? What the EU Is, and Is Not A. Introduction B. Historical Development C. The Union Today D. State-like Features E. Non-state-like Features 3 Marking the Territory: Principles Governing Union Competences A. Introduction B. Basic Treaty Provisions on Competence C. Articles 114 and 352 TFEU D. The Principle of Subsidiarity 4 Who Is the Boss? In Search of a Master of the Treaties A. Introduction B. Procedures for Amending the Treaties C. Creeping Competences? D. The Ties that Bind 5 Looking Past the Trees to See the Wood: Construing a Hierarchy of Norms A. Introduction B. Foundations of the Union Legal Order C. Primary Law D. International Law E. Secondary Law and other Acts of the Institutions 6 Into the Estuaries and up the Rivers: Union Law in the National Legal Orders of the Member States A. Introduction B. Primacy C. Conformity through Interpretation D. Direct Applicability and Direct Effect 7 A Lot More than Brussels Bureaucrats: The Institutional Framework A. Introduction B. The Union's Institutions C. Union Regulatory and Administrative Bodies D. Institutions and Bodies of the Member States 8 A Suprematist Composition? Differentiation and Flexibility A. Introduction B. Differentiation in Primary Law C. Enhanced Cooperation 9 What Deficit? The EU System of Democracy A. Introduction B. General Considerations C. The Political Institutions D. Participatory, Deliberative and Substantive Democracy 10 Civis Europeus Sum: The Evolving Concept of Union Citizenship A. Introduction B. Pie in the Sky? C. Who is a Union Citizen? D. The Right to Move and Reside E. From Movement to Citizenship and Beyond 11 Taking Rights More Seriously? The EU System of Fundamental Rights A. Introduction B. Field of Application C. Sources and Material Scope D. Non-discrimination E. Direct Effect 12 Broadening Horizons? The Area of Freedom, Security and Justice A. Introduction B. Border Checks, Asylum and Immigration C. Judicial Cooperation in Civil Matters D. Judicial Cooperation in Criminal Matters E. Police Cooperation 13 The Internal Market: Liberal, Social, Green or Chameleon? A. Introduction B. The Economic Free Movement Rights C. The Social Dimension D. Environment 14 Building a House by Starting with the Roof? Economic and Monetary Policy A. Introduction B. Monetary Policy C. Economic and Fiscal Surveillance D. The Stability Mechanisms E. Built to Last? 15 An Elephant Trumpeting Loud and Clear or a Gaggle of Geese? EU External Relations A. Introduction B. Institutional Framework for External Action C. Union Competences and their Use D. The Union and the Member States E. Security and Defence 16 Covenants of No Strength to Secure A Man At All? Issues of Enforcement and Control A. Introduction B. Control of Union Institutions and Bodies C. The Role of Member States' Courts and Authorities 17 The Elephant in the Room? Concluding Remarks

'A Union Founded on the Rule of Law': Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law

Abstract: This article examines the substance and scope of this constitutional principle before subjecting the EU’s constitutional framework to 'a rule of law audit.' It will first be shown that the EU constitutional principle of the rule of law is, to paraphrase Lord Bingham, no meaningless verbiage. Not only has the rule of law unsurprisingly become one of the defining principles undergirding the Union’s constitutional system, but the EU courts have correctly understood it as a multifaceted legal principle, with formal and substantive elements, and whose normative impact should not be underestimated. The fact that the EU rule of law is no hollow slogan, however, does not necessarily imply that there is no gap between rhetoric and practice. Adopting the Court of Justice’s understanding of the rule of law as a benchmark, this article will propose that the post-Maastricht Union’s constitutional framework illustrated a serious ‘rule of law deficit’ that has been considerably remedied by a set of long-awaited reforms contained in the 2007 Lisbon Treaty.

Founding Principles of EU Law: a Theoretical and Doctrinal Sketch

Abstract: The article discusses the roles of founding principles of the EU with the method of doctrinal constructivism, thereby explaining this specific approach to legal scholarship. At the same time it proves the usefulness of the constitutional approach to EU law. Core characteristics of the EU legal order should become more tangible.

Corporate Political Speech: Who Decides?

Abstract: I. INTRODUCTION The Supreme Court spoke clearly this Term on the issue of cor-porate political speech, concluding in Citizens United v. FEC (1) that the First Amendment protects corporations' freedom to spend corporate funds on indirect support of political candidates. (2) Constitutional law scholars will long debate the wisdom of that holding, as do the authors of the two other Comments in this issue. (3) In contrast, this Comment accepts as given that corporations may not be limited from spending money on politics should they decide to speak. We focus instead on an important question left unanswered by Citizens United: who should have the power to decide whether a corporation will engage in political speech? Under existing law, a corporation's decision to engage in political speech is governed by the same rules as ordinary business decisions, which give directors and executives virtually plenary authority. In this Comment, we argue that such rules are inappropriate for corporate political speech decisions. Instead, lawmakers should develop special rules to govern who may make political speech decisions on behalf of corporations. We analyze the types of rules that lawmakers should consider. We also offer a set of proposals, and policymaking consider-ations, for designing such rules. In Part II, we consider existing corporate law rules governing the political speech decision. As long as corporations are permitted to engage in political speech, we show, decisional rules governing whether and how they decide to do so are inevitable. Under existing corporate law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Accordingly, corporate political speech decisions do not require shareholder input, a role for independent directors, or disclosure--the safeguards that corporate law rules establish for special corporate decisions. We explain that the interests of directors and executives with respect to political speech decisions may diverge from those of shareholders, (4) that the financial implications of these decisions are hardly trivial, and that the costs of the divergence of interests may be exacerbated by the special expressive significance that these decisions carry for shareholders. We conclude that political speech decisions are substantially different from, and should not be subject to the same rules as, ordinary business decisions. In Part III, we assess lawmakers' choices with respect to rules that would align corporate political speech decisions with shareholder interests. In particular, we suggest that lawmakers consider adopting rules that (i) provide shareholders with a role in determining the amount and targets of corporate political spending; (ii) require that independent directors oversee corporate political speech decisions; (iii) allow shareholders to opt out of--that is, either tighten or relax--each of these first two rules; and (iv) mandate detailed and robust disclosure to shareholders of the amounts and beneficiaries of a corporation's political spending, whether made directly by the company or indirectly through intermediaries. We explain how such rules would benefit shareholders. We also explain why the proposed rules are best viewed not as limitations on corporations' speech rights but rather as a method of determining whether the corporation actually wishes to engage in political speech. Thus, these rules protect, rather than abridge, corporations' First Amendment interests. Part IV discusses an additional objective that decisional rules concerning corporations' political speech may seek to serve: the protection of minority shareholders from forced association with political speech supported by a majority of shareholders. We discuss the economic and First Amendment interests of minority shareholders that lawmakers may seek to protect. Although we conclude that requiring unanimous shareholder approval for corporate political speech would likely be neither desirable nor permissible, we argue that decisional rules addressing political spending opposed by a sufficiently large minority of shareholders should be viewed as constitutionally permissible, and we discuss how lawmakers could best design such rules. …

The preamble in constitutional interpretation

Abstract: From Platos Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. Through a qualitative analysis of the legal status of preambles in different common law and civil law countries, the article highlights a recent trend in comparative constitutional law: the growing use of preambles in constitutional adjudication and constitutional design. The article also explores the theory of preambles and their functions. It examines the legal status of the U.S. preamble and shows how the U.S. preamble remains the most neglected section in American constitutional theory. The article then presents a typology for determining the legal status of preambles: a symbolic preamble, an interpretive preamble, and a substantive preamble. While focusing on Macedonia, Israel, Australia, and the Treaty of Lisbon, the article discusses the sociological function of preambles in top-down and bottom-up constitutional designs.

The interpretation-construction distinction

Abstract: Part of Symposium: The interpretation/construction distinction in constitutional law: Annual meeting of the AALS Section on Constitutional Law.

Religion and the Public Order of the European Union

Abstract: 1 Introduction 2 Europe's Religious Inheritance: Religion, Law and Identity in Contemporary Europe 3 Balance, Inheritance and Religion as a Basis of Law in the Public Order of the European Union 4 Religion as Identity and the Fundamental Rights Obligations of the Union 5 The Regulation of Religion in the Single Market 6 Competing Identities Limiting Religious Influence within the Public Order of the Union 7 Conclusion

All Things in Proportion? American Rights Doctrine and the Problem of Balancing

Abstract: This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how constitutional judges in other systems use PA, assesses the costs and benefits of adopting it, and contrasts proportionality with American strict scrutiny. Part III recovers the foundations of proportionality in American rights review, focusing on two critical junctures: (1) the emergence of a version of PA in Dormant Commerce Clause doctrine in the late nineteenth century, the core of which persists today; and (2) the consolidation of the strict scrutiny framework in the mid-twentieth century. Part IV demonstrates that the “tiered review” regime chronically produces pathologies that have weakened rights protection in the United States, and undermined the coherence of the Supreme Court’s rights jurisprudence. PA, while not a cure-all for the challenges facing rights-protecting courts, avoids these pathologies by providing a relatively systematic, transparent, and trans-substantive doctrinal structure for balancing. We also show that all three levels of review - rational basis, intermediate review, and strict scrutiny - have, at various points in their evolution, contained core elements of proportionality. In Part V, we argue Supreme Court can and should develop a home-grown version of PA, based on its existing case law and American constitutional traditions and values, and we respond to objections to the argument.

Revealing the dark side of traditional democracies in plurinational societies: the case of Catalonia and the Spanish ‘Estado de las Autonomías’

Abstract: . In this article, I will deal with some elements related to the analysis of theories of democracies and federalism in plurinational contexts. The paper highlights some flaws and shortcomings of traditional liberal democracies in these contexts and the challenge of establishing effective practices of a politics of recognition and constitutional accommodation of internal national pluralism (Section 1). Secondly, the paper analyses the case of Catalonia after the recent reform of its Statute of Autonomy (Constitutional Law) in 2006 and its relationship with the development of the Spanish Estado de las Autonomias. The Catalan case reveals some practical flaws and important difficulties in the political recognition and accommodation of internal national pluralism according to traditional decentralising patterns (Section 2). Finally, the article makes a number of concluding remarks relating the previously highlighted elements of the theory of democracy and federalism to the analysis of the Catalan case

Proportionality: An assault on human rights?: A reply

Abstract: In a recent article in the International Journal of Constitutional Law, Stavros Tsakyrakis presents a passionate critique of the proportionality test. Tsakyrakis regards proportionality as an illusory attempt at infusing objectivity in rights adjudication. Moreover, he posits that it necessitates weighing public interests against individual rights. Proportionality has emerged globally as the leading framework for evaluating rights violations. It serves as the uniform standard of rights review in jurisdictions as diverse as Israel, Germany, Canada, and South Africa. Remarkably, recent opinions by Justice Breyer of the United States Supreme Court indicate that the approach is gaining currency within American’s constitutional jurisprudence. Considering proportionality’s significance, Tsakyrakis’ critique is of considerable moment and merits careful study. In this Essay I argue that while Tsakyrakis is right to consider certain types of balancing objectionable, he is wrong to conclude that proportionality necessitates them. Rather than focusing on important philosophical questions regarding the commensurability of values, this response is limited to providing clarity on proportionality’s methodology and observing the false premises that underline Tsakyrakis’ arguments. Examining the cases and hypothetical that Tsakyrakis relies upon, I demonstrate how they fail to articulate any defect in the proportionality test. Notwithstanding this, Tsakyrakis’ analysis provides a useful insight into the dangers of treating proportionality subtests as farcical.