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International Journal of Constitutional Law Current Issue





Published: Mon, 19 Feb 2018 00:00:00 GMT

Last Build Date: Mon, 19 Feb 2018 05:44:47 GMT

 



Post Sovereign Constitution Making: Learning and Legitimacy

Mon, 19 Feb 2018 00:00:00 GMT

AratoAndrew. Post Sovereign Constitution Making: Learning and LegitimacyOxford University Press, 2016. Pp. 320. £60. ISBN: 9780198755982.



What Is Populism?

Mon, 19 Feb 2018 00:00:00 GMT

MüllerJan-Werner. What Is Populism?University of Pennsylvania Press, 2016. Pp. 136. $19.95. ISBN: 9780812248982.



Constitutionalism Beyond Liberalism

Mon, 19 Feb 2018 00:00:00 GMT

DowdleMichael W. & WilkinsonMichael A., eds. Constitutionalism Beyond Liberalism. Cambridge University Press, 2017. Pp. 367367. £ 75.00. ISBN: 9781107112759.



Unconstitutional Constitutional Amendments

Mon, 19 Feb 2018 00:00:00 GMT

RoznaiYaniv. Unconstitutional Constitutional Amendments. Oxford University Press, 2017. Pp. 368. £60.00. ISBN: 9780198768791.



From Dialogue to Disagreement in Comparative Rights Constitutionalism

Mon, 19 Feb 2018 00:00:00 GMT

StephensonScott. From Dialogue to Disagreement in Comparative Rights Constitutionalism. Federation Press, 2016. Pp. 272. $90.00. ISBN: 9781760020675.



Sovereignty in Post-Sovereign Society: A Systems Theory of European Constitutionalism

Mon, 19 Feb 2018 00:00:00 GMT

PřibáňJiří. Sovereignty in Post-Sovereign Society: A Systems Theory of European Constitutionalism.Routledge, 2015. Pp. 262. £34.99 (paperback). ISBN-10: 1138701491.



Je Suis Achbita!

Mon, 19 Feb 2018 00:00:00 GMT

Achbita, decided in March 2017, is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.



Honor Roll of Reviewers 2017

Mon, 19 Feb 2018 00:00:00 GMT

We are indebted to the following colleagues who, in addition to our Editorial and Scientific Advisory Board members, gave their time this year to act as peer reviewers for I·CON. Without their valuable contribution we would not be able to maintain the excellent scholarly standards of our Journal.



Integrity of the public sector and controls: A new challenge for global administrative law?

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
There are many rules and measures governing the integrity of public administrations. They concern the quality of actions taken by public servants, measured on the basis of fundamental rules and public values. In particular, transparency rules, risk management programs, and codes of conduct for public officials aim to promote accountability, fairness, and discipline in public administrations; others, instead, correspond to limits and sanctions, such as restrictions (e.g., definitions of potential conflicts of interest), administrative responsibilities, and disciplinary sanctions. All these integrity rules and measures are established by global regimes and implemented by both national systems and the global regimes themselves. Global regimes set standards and oversee the compliance of national systems with global integrity rules. At the same time, they are themselves subject to administrative constraints and diversified integrity controls. Global regimes therefore play a dual role, as both controllers and controlled. This raises some questions, including how the application of integrity rules and measures can be controlled, the differences between integrity controls related to national systems and those pertaining to global regimes, and how integrity controls can contribute to the development of global administrative law. All these come together in a central question of why these controls represent a new challenge in global administrative law.



Constitutions as communication

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
A neglected function of constitutions is their role in facilitating communication. This is particularly important if one accepts the approach of constitutional pluralism, both at the international level and between plural constitutions at the national level. Communication may be between different types of constitutions or between legal and other forms of social systems such as the economy and politics. Theoretical support for this approach can be found in Habermas’s discursive theory of democracy, and also in recent developments in systems theory. The role of constitutional communication is here illustrated through four case studies drawn from economic management. The first two concern failures of communication through the use of balanced budget rules, and in the breakdown of institutional relations in the UK under the pressure of the financial crisis of 2008–2009. The other two identify successes; the German Federal Constitutional Court’s support for legislative deliberation in relation to eurozone rescue measures and the development of countervailing institutions linked by soft law in UK monetary and fiscal policy.



Federalism, rights, and backlash in Europe and the United States

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
This article introduces the symposium “Federalism and Rights: Europe and the United States Compared.” In both the European Union and the United States, the struggle for rights and the resilience of (quasi-)federal structures is, once again, a burning issue. In Europe, the overall trajectory of the EU as a common project is also contested. As in the USA, struggles within the (quasi-)federal structure of the EU serve as the pursuit of political contestation through legal means. In federalism theory, neither the experimentation narrative nor the notion of “dissenting by deciding” tells us where to draw the line between fruitful experimentation, contestation, and struggle, on the one hand, and devastating backlash, on the other. With the looming rise of nationalist populist movements such as Brexit, but also the faltering democracies of Central and Eastern Europe, today the question becomes to what extent states and localities can still channel some of this new wave of backlash and counterbacklash facing both the EU and the United States. Comparative research that would help us to learn how to distinguish between productive and dangerous backlash is still at the very beginning. Yet the case studies in this symposium lay the groundwork for comparative answers to this very question.



The federalizing force of the EU Charter of Fundamental Rights

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
In the EU, fundamental rights are inextricably intertwined with the federal structure of such a uniquely divided power composite. This article examines the structure of fundamental rights’ protection and the continuous bargaining over the allocation of judicial tasks between domestic and EU courts regarding the interpretation and enforcement of fundamental rights. First, I will analyze the latest Court of Justice case law to show how, since the Charter of Fundamental Rights entered into force, it has had a centralizing effect. Next, I will reflect upon how the “nationalist school of federalism” developed in the US literature might provide valuable insights for an argument grounding supranational authority while acknowledging the contribution of state constitutions and state courts to the supranational system of rights’ protection. In the end, it will be argued that the growing self-empowerment of the Court of Justice in the field of fundamental rights needs to be tempered by an understanding of how state courts and rights could actually promote supranational ends in this context.



Marriage, morality, and federalism: The USA and Europe compared

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
Same-sex marriage litigation, both in the USA and Europe, has often pitted rights against state autonomy, and religious and moral beliefs against equality norms. Where the US Supreme Court and the European Court of Human Rights have diverged most notably is in their willingness to consider moral arguments made by states opposed to same-sex marriage. Treating moral arguments as illegitimate, as the USA has done, paved the way for the nationalization of same-sex marriage in 2015. But doing so came at a cost: It allowed courts to sidestep the most important concerns voiced on both sides of the debate—not just opponents’ moral arguments but also gay rights advocates’ equality claims. Further, by refusing to hear the one thing that made states meaningfully different on the issue of marriage, courts made federalism largely irrelevant. Recent battles over same-sex marriage in Europe show how this dialog might have been—and could still be—conducted differently.



Fragmentation as an agent of integration: Subnational authorities in EU law

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
This article draws on the theory of “federalism as the new nationalism” to illustrate that regulatory fragmentation is not necessarily synonymous with disintegration. Regulatory fragmentation can rather be conceptualized as a tool assisting European integration. Looking at the status of subnational authorities (SNAs) in EU law, the article identifies decisions of the Court of Justice of the European Union (CJEU) in free movement law that illustrate that SNAs can be conceived as valuable insiders, rather than threatening outsiders, of European law. This account, which indicates that SNAs’ contribution to European legal integration is in many ways analogous to that of the Member States, stands in contrast with the European Treaties that recognize only two levels of public authority as SNAs are seen as a predominantly domestic phenomenon of little relevance for the supranational project. My analysis underscores that SNAs and their norms do not exist in a sphere separate from that of EU law. It highlights diverse interactions between the subnational and the supranational and suggests that the influence of levels of public authority can best be captured by a paradigm of interconnection rather than separation. Indeed, contrary to commonplace assumptions, it is not actors’ formal status, anchored in notions such as independence, sovereignty, and autonomous competences but the manifold functional interactions between them that shape the polycentric Union. Through this functional lens we confirm what federalism scholars have observed in the USA, namely, that “decentralization can serve rather than undermine the project of integration.”



Domesticating the “foreign” in making transatlantic data privacy law

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
Research shows that in the data privacy domain, the regulation promoted by front-runner states in federated systems such as the United States or the European Union (EU) generates races to the top, not to the bottom. Institutional dynamics or the willingness of major interstate companies to work with a single standard generally creates opportunities for the federal lawmaker to level up privacy protection. This article uses federalism to explore whether a similar pattern of convergence (toward the higher regulatory standard) emerges when it comes to the international arena, or whether we witness a more nuanced picture. I focus on the interaction of the European Union with the United States, looking at the migration of legal ideas across the (member) state jurisdictions with a focus on breach notification statutes and privacy officers. The article further analyzes recent developments such as the invalidation of the Safe Harbor agreement and the adoption of a Privacy Shield. I argue that instead of a one-way street, usually conceptualized as the EU ratcheting up standards in the United States, the influences between the two blocs are mutual. Such influences are conditioned by the receptivity and ability of domestic actors in both the United States and the EU to translate, and often, adapt the “foreign” to their respective contexts. Instead of converging toward a uniform standard, the different points of entry in the two federated systems contribute to the continuous development of two models of regulating commercial privacy that, thus far, remain distinct.



Federalisms, rights, and autonomies: The United States, Germany, and the EU

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
The aim of this article is to demonstrate that federal structure and rights, though commonly kept apart, should be studied in their interaction. This can be illustrated by a comparison of the American and German constitutional traditions. In both traditions, federalism and rights interact in a characteristic way. These examples suggest that federalism should be viewed neither exclusively as a holistic principle nor as an individualistic principle. Rather, the relationship between federal structure and rights reflects the interdependence of individual and democratic autonomies. In the European Union, awareness of the interaction between (quasi-)federal structure and rights can guide the Court of Justice of the European Union as a fundamental rights court. When applying EU fundamental rights to the Member States, the Court should exercise restraint. More precisely, a procedural approach to the margin of appreciation or the federalism discount granted by the Court is appropriate from a structural point of view. It not only is an adequate answer to current challenges of fundamental rights protection in the EU but also reflects the EU’s dual structure of democratic legitimation.



Substantive equality revisited: A rejoinder to Sandra Fredman

Mon, 19 Feb 2018 00:00:00 GMT

This is the last piece in a dialogue begun by Sandra Fredman with her article, “Substantive Equality Revisited,”11 to which I submitted a requested response,22 and to which she replied with a Rejoinder.33



The (dis)establishment of gender: Care and gender roles in the family as a constitutional matter: A reply to Ruth Rubio-Marín

Mon, 19 Feb 2018 00:00:00 GMT

In her thoughtful article,11 Ruth Rubio-Marín sketches an overview of how a gender order was constitutionally established and how it can now be disestablished. Her focus is on “gender roles and the distribution of care responsibilities and work within the household.” It is a welcome contribution to the constitutional law literature. As she points out, the chapter on women as constitutional subjects is a missing chapter yet to be written.22 Indeed, one may wonder why this is so, as these issues have been long debated within other disciplines. There is a rather extensive literature in the field of economics and sociology on the impact of (and the reasons for introducing) parental leave measures.33



The (dis)establishment of gender: Care and gender roles in the family as a constitutional matter: A rejoinder to Anna Södersten

Mon, 19 Feb 2018 00:00:00 GMT

The focus of my article is, as the title indicates, constitutionalism.11 Yet, in her reply, Anna Södersten rightly suggests that constitutionalism must not necessarily play a role (or the same role) in the crafting and reform of gender models in every national jurisdiction. That is particularly the case, she maintains, for the Nordic countries, which have not afforded constitutionalism a central role within their democratic traditions; there, egalitarian visions of gender relations have been advanced through laws and policies, without constitutionalism significantly coming into play. I share her perception, and, in fact, I mention in the article that it is implausible to think that traditional gender roles around the distribution of care in the family domain can only or mainly be altered through constitutional instruments (be they provisions or doctrinal constructions; rights, duties, or jurisdictional norms).22 Instead, a combination of policies of redistributive dimensions (including those that rely not so much on impositions and sanctions but rather on economic incentives) might indeed be the most promising means for society to assume its share of collective responsibility for social reproduction.



Quotas as an instrument of burden-sharing in international refugee law: The many facets of an instrument still in the making

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
Starting with the year 2015 Europe has come under unprecedented migratory pressure that put into question the very structure of the Common European Asylum System (CEAS). In fact, according to the so-called Dublin regime the country of first entrance is responsible for carrying out the asylum procedure leaving it open how the burden that the granting of asylum involves should eventually be shared between the EU Member States. Both the 1951 United Nations Geneva Convention Relating to the Status of Refugees (GCR 1951) and the CEAS are built upon the implicit assumption that refugee protection should be of a temporary nature, but in reality protection has most often become permanent. In order to avoid excessive burdens for front-line states in Europe and for Europe as a whole, the call for the introduction of burden-sharing mechanisms is becoming ever louder. In this context, quota systems have been presented as ideal problem solution instruments. The European Union has tried to establish such mechanisms but so far all these attempts proved to be insufficient and they met with considerable resistance by some EU Member States. As a consequence, the insufficiencies of the GCR and the CEAS become evident and the international asylum system as a whole becomes imperiled.



Race in French “republican” law: The case of gens du voyage and Roma

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
This article discusses the racial and racist dimensions of the legal framework regulating nomadic people(s) in France, who have become known as gens du voyage, which was introduced in 1912 and later modified and complemented by additional statutes and regulations. It goes on to analyze the fundamental rights challenges that have been brought against this framework at the internal and international human rights level. While certain violations of this framework have thus been addressed or eliminated over time, this article argues that the reluctance of the French legal system and, to a lesser extent, of the international human rights system to adopt race as an analytical category, has prevented the acknowledgement of the continued race discrimination to which these populations are exposed. This continues to pose a problem today, also with regard to the treatment of Roma in France to whom this framework also partly applies, despite the arguable elimination or invisibilization of an outright racism in the legal system.



Animals in the constitutional state

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
While many constitutions refer to animals as resources or symbols, in recent years a distinct form of constitutional provision has emerged, treating the interests of individual animals as matters of intrinsic constitutional concern. The countries with such provisions are Switzerland (as of 1973), India (1976), Brazil (1988), Slovenia (1991), Germany (2002), Luxembourg (2007), Austria (2013), and Egypt (2014). The enactment histories, texts, and interpretations in these diverse jurisdictions are highly local, but this article suggests that these provisions can and should be identified as a distinct and novel category of constitutional provision insofar as they each seek to directly protect animal interests. This article demonstrates that the emergence of these novel constitutional animal protection provisions represents a significant disconnect from prevailing theories of constitutionalism, which generally place the dignity and democratic self-assertion of human subjects at their center. This article explores this tension between constitutional animal protection and prevailing theories of constitutionalism and proposes a supplementary account of constitutional theory that embraces the state’s obligation to attend to the interests of its most vulnerable members—even, and perhaps especially, where those members are incapable of constitutional self-assertion. This analysis offers a way of seeing constitutional animal protection as continuous with existing constitutional values, while also attending to the unique harms and politics of contemporary animal exploitation.



The American tradition of constituent power

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
How do “the people” exercise their revolutionary right to replace the existing constitutional order? The conventional answer is that the people act through specially elected constitution-making bodies like constitutional conventions. But what powers must these specially elected institutions—as the representatives of the people—wield? Must they possess the inherent power to, for instance, unilaterally change the ratification requirements? Or, even if they must submit their drafts to a popular referendum, must they have inherent power to pass laws or displace existing government prior to a referendum? These questions have recently re-emerged in constitutional transformations around the world. Constitution-making bodies with broad inherent legal powers—justified as necessary for revolutionary expressions of the popular voice—have allowed strong partisan factions to use constitution-making to consolidate power. Some scholars—citing recent practice—have argued that we should abandon the revolutionary tradition altogether. A recovery of American debates about the powers of constitution-making bodies, however, shows that these runaway bodies are not necessary to a revolutionary expression of constituent power. On the contrary, the American approach to constituent power presents strong reasons why a revolutionary exercise of constituent power requires an elected constitution-making body to be a proposing body with limited legal powers.



The forms and limits of constitutions as political insurance

Mon, 19 Feb 2018 00:00:00 GMT

Abstract
Constitutional review, and constitutions more broadly, have been analyzed as providing political insurance for parties who risk declining power. This article develops a typology of risks against which insurance may be useful, and explains how each has its own distinctive institutional implications. It suggests that political elites may seek insurance against three distinct risks—to their power, person, and policies—and that each form of insurance implies somewhat different constitutional choices in terms of the jurisdiction, staffing, and access to courts. Furthermore, the article provides an account as to why insurance may be robust even in the face of downstream political change, addressing a key criticism of the original theory. The key idea is that insurance is more robust when it is “two-sided,” that is, consisting of mutual commitments from multiple parties. In this way, the article provides a general account of constitutions as a response to political risk and identifies specific conditions under which constitutions are likely to fulfill the aims or expectations of drafters for effective political insurance.