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American and European Constitutionalism Compared: A Report from the UNIDEM Conference in Göttingen, 23-24 May, 2003

Published online by Cambridge University Press:  06 March 2019

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There is currently a considerable amount of soul-searching underway by scholars on both sides of the Atlantic. For the cosmopolitanites of the academic world, the unpleasant disagreements over policy towards Iraq between Old Europe and the New World were not only unsettling but symptomatic of a more deep-seated disagreement between (former) friends. The theme of the Unidem seminar, held at the University of Göttingen on May 23-24, 2003, can be seen as sitting nicely within a desire for an explanation for this tension. Clearly underlying the organization of the conference, choice of themes and the invitation of speakers was the organizer's desire to reach a greater understanding of the difference and similarities between constitutionalism in Europe and in the United States and the reasons for and consequences of these divergences. Thus, although the Iraqi crisis obviously took place long after the theme of the conference had been conceived (and it has to be said that Georg Nolte's conferences appear to have a habit of coming hard on the heels of related dramatic events in the real world, suggesting an almost magical foresight on his part), it should nevertheless be understood as falling within this movement.

Type
Legal Culture
Copyright
Copyright © 2003 by German Law Journal GbR 

References

1 The Unidem Seminar was organized by Professor Georg Nolte of the University of Göttingen, substitute member for Germany to the Venice Commission (http://venice.coe.int/), in cooperation with the Institute of International Law at the University of Göttingen, Yale Law School and the Volkswagen Stiftung. The conference program can be found at: vhttp://www.gwdg.de/~ujvr/institut/veranstaltungen.html)Google Scholar

2 Robert O. Keohane, ‘Ironies of Sovereignty: The European Union and the United States’ (2002) 40 Journal of Common Market Studies 743, explains the policy disagreements between Europe and the United States in recent years in terms of a fundamentally different understanding of sovereignty – the former apparently moving away from ‘the classic conception of sovereignty’ that has become so deeply embedded in American thinking.Google Scholar

3 Giovanni Bognetti (University of Milano), ‘The Concept of Human Dignity in European and American Constitutionalism'.Google Scholar

4 For example, where the German Constitution has a general clause laying down the social nature of the state (Articles 20 and 28), those of France (Article 34) and Italy have specific clauses (in Italy's case several clauses, for example, Article 3, stating that all citizens enjoy “social dignity” and Article 32 providing for health care as a fundamental right and the free provision of health care in the attainment of that right; Article 36 (“Wages”) perhaps most clearly illustrates the differing approach of Europe to the constitutional protection of human dignity).Google Scholar

5 For a thoughtful comment on the impact of bioengineering on the individuality of the human being, see Slavoj Zizek, ‘Bring me my Philips Mental Jacket', London Review of Books, Vol. 25, 22 May 2003; available on-line at: http://www.lrb.co.uk/v25/n10/zize01_.html Google Scholar

6 It is perhaps possible to suggest, as Whitman does, that the United Kingdom was closer to the US model until recently; however, it should be pointed out that the standards demanded by the European Convention on Human Rights has brought Britain into line, perhaps grudgingly, with its European partners.Google Scholar

7 The almost impossibly high standard of ‘intentional falsity’ for the law of defamation set down in New York Times Co. v. Sullivan [376 U.S. 264 (1964)], a standard extended from public officials to public figures in Curtis Publishing Co. v. Butts [388 U.S. 130 (1967)], saw the US stake out a position previously unknown in common law tradition.Google Scholar

8 See Bickel, Alexander M., The Morality of Consent (1975); see also Alexander M. Bickel, “Citizenship in the American Constitution”, 15 Arizona L. Rev. 369 (1973); ibid., The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1 (1955).Google Scholar

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13 See the Analysis of both cases with a concluding comparative perspective on US law by Dederer, in: Menzel (ed.), Verfassungsrechtsprechung 242-253 (2000)Google Scholar

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15 See the reminisces by Gerhard Casper at the occasion of the Court's 50th Birthday celebration: The Karlsruhe Republic, in: 2 German Law Journal No. 18 (1 December 2001), available at: http://www.germanlawjournal.com/past_issues.php?id=111.Google Scholar

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19 Britain's accession to the European Community in 1972 and the Community's incorporation of the jurisprudence of the ECHR in the mid-1970s allowed UK courts to review UK statutes for compatibility with those rights within the scope of Community competence.Google Scholar

20 See the analysis of the US policy with regard to Iraq and the fight over another resolution: Craig Scott, Iraq and the Serious Word Games: Language, Violence and Responsibility in the Security Council in: 3 German Law Journal No. 11 (1 November 2002), available at: http://www.germanlawjournal.com Google Scholar

21 See the so-called Freiburg Lawyers’ Declaration by Kai Ambos et al., in: 4 German Law Journal No. 3 (1 March 2003), available at: http://www.germanlawjournal.com Google Scholar

22 Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus (1926), 7th Ed. 1991.Google Scholar