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Obergefell v. Hodges, the 2015 Supreme Court decision establishing a constitutional right for same-sex couples to marry, marked the first time in the Court’s history that justices explicitly disagreed over the meaning and requirements of human dignity. In his dissenting opinion Clarence Thomas sought to reclaim rather than simply reject the language of dignity, advancing a conception of dignity that differed sharply from the conception embraced by the majority. Using this disagreement as a point of departure, this article demonstrates how dignity has served as an extra-textual value that underpins divergent visions of American constitutionalism that, in turn, inform interpretations of the Constitution’s text and history.
This chapter does not provide an argument for or against the legitimacy of investment arbitration, but analyzes the discourse on legitimacy from a conceptual standpoint. Rather than offering an abstract analysis of different theoretical conceptions or concepts of legitimacy, it focuses on the concrete aspects addressed by different participants in the debate under the heading of legitimacy and the differences in underlying assumptions. It explains that because of similarities between investment arbitration and mechanisms of public law and governance, the legitimacy critique of investment arbitration in essence results from the observation of a mismatch between the private-law-inspired rationale of investment arbitration and the demands of principles of constitutional law that are generally used to assess the legitimacy of governance mechanisms. The chapter then turns to how states and policy-makers, arbitral tribunals, and scholarship can and in parts do react to the legitimacy critique of investment arbitration and how they aim at reestablishing legitimacy.
This article presents a cross-disciplinary approach to the study of constitutions: ‘constitutional institutionalism’. Conventional approaches in law, philosophy or political science tend to reduce constitutions either to their formal, factual or ideal aspects. The constitutional-institutionalist approach, by contrast, seeks to integrate these aspects into a more general perspective by focusing on the dynamic interplay between constitutional actors and constitutional norms. It understands constitutional norms as binding institutions that shape and constrain political action, but never fully determine it. Constitutional institutionalism furthermore asserts that constitutional norms, whatever form they take, only have meaning in relation to other constitutional norms as well as to constitutional actors, who impose meaning on these norms. Therefore, constitutional phenomena ultimately require interpretive explanations. This article concludes with a brief constitutional-institutionalist research agenda.
A persisting question about investment treaties is whether they lead to regulatory chill – the reluctance to regulate on environmental and social issues due to fear of investment claims. The literature on this topic has been predominantly focussed on how the state responds to international pressures, and little has been written about what happens within the state itself. This article aims to fill that gap by analysing the interplay of domestic laws and institutions in the context of potential investment claims, based on the case study of mining in the Santurbán páramo region in Colombia. The article shows that even though Colombia had created laws and institutions that internalized international investment law, it did not bring about regulatory chill in the case of Santurbán; this is due to the role of domestic constitutional law and the Constitutional Court. This case study also adds to the understanding of how the Liberal International Order is shifting from international to domestic governance, by showing how domestic laws and institutions can have diverging priorities when determining how the risk of investment claims is dealt with.
The conclusion synthesizes and reflects upon the case studies and comparative and theoretical contributions in the book. The cases are organized around three categories: first, relatively conventional decentralization initiatives in which reforms were adopted to improve governance; second, contexts in which decentralization has been contemplated as a framework for self-determination for the region’s stateless communities; and finally, decentralization initiatives undertaken in the shadow of conflict and state fragmentation. This concluding chapter develops theoretical insights drawn from the rich terrain for qualitative comparison across these three contexts. It offers reflections on key characteristics of the shared regional context and a typology of factors driving decentralization in the Middle East and North Africa (MENA) region. It argues that an important contribution of the volume lies in identifying a broader array of motivations for, and actors driving, decentralization than currently reflected in the scholarly literature and in parsing the implications for the institutional design of decentralized government. The chapter concludes by distilling patterns from the cases to identify distinct trajectories of decentralization that are evidenced in the MENA region and their entailments.
In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care “haves” by the health-care “have-nots.” Weeks also rejects the original opinion’s dichotomy between “old” and “new” Medicaid as an artifice evidencing a fundamental discomfort with extending public assistance to able-bodied people who are judged capable of providing for themselves on the private market. In their commentary, Mary Ann Chirba and Alice Noble assess the original opinion and Weeks’ feminist rewrite in terms of their concrete effects on women’s lives.
Chapter 4 demonstrates that the recommendations that favoured state intervention were coupled with a different way of thinking about political power: its nature, its sources and its organisation. The intellectual éminence grise behind this was Nikolaos Saripolos, who, after coming to Greece and being elected to the Law School in 1846, was to become the country’s leading constitutional and international law scholar. Being mindful of the revolutionary tradition and fusing together several different intellectual currents (Rousseau, Doctrinaires, the monarchiens, Benjamin Constant), Saripolos changed the terms of constitutional thinking by drawing on the revolutionary idioms of natural rights and national sovereignty. This was a liberal, governmental discourse that spoke in terms of sovereignty as self-rule and of the state as a moral person with rights in the international arena. As the chapter demonstrates, for Saripolos – as well as for the economist Ioannis Soutsos – the state in the form it then took had become an obstacle to the formation of the nation and was undermining social cohesion.
The author first presents an uncritical user’s guide to the book, then discusses why Witte, Nichols, and Garnett should consider including key chapters of the story of US religious liberty in the next edition. The author then deconstructs the normative and methodological assumptions of the book.
This chapter considers the relationship between Buddhism and constitutional law from the perspective of the Canon Law. Drawing on examples from the other chapters in the volume, it elaborates on the connections between religion and several key constitutional ideas: freedom of religion, the right to remain silent, welfare rights, and the status of the clergy.
This study investigates how citizens assess the credibility of constitutional experts on matters of government authority. Analyses of data from two similarly designed experiments, conducted with national samples, reveal that partisanship, race, and level of education are significant predictors of survey respondents’ willingness to extend credibility to constitutional experts. The compatibility of the views expressed by experts with respondents’ own policy views on issues that are the subject of proposed government action is also important. Evidence shows that this consistency is more important in the decision that experts are credible than in decisions that they are not credible, suggesting that esteem motives are relevant in the decision to credit experts who express views congenial to our own that are distinct from social-identity motives scholars have theorized to be important in partisan resistance to expertise. The implications of findings for holding government officials accountable to constitutional limits on government authority are considered.
This chapter connects the study of Islam and constitutional law with the nascent material on Buddhism. First, it notes the surprisingly long delay in commencing a study of the relationship between Islam and constitutional law, and upon the political and academic developments that eventually inspired the academy to focus its energies productively onto studies in this area. Second, it discusses some of the central findings produced by scholars of this field over the past twenty-five years, focusing on the Sunni world. Third, this chapter will very cautiously draw upon the contributions in this volume to highlight some ways in which patterns found in the Sunni Muslim world seem to be absent in a number of Buddhist countries. The overlaps and contrasts between these two religious traditions and their approaches to constitutional law provide many opportunities for deeper engagement.
The product of an internationalized peace process, Cambodia’s 1993 Constitution restored the monarchy and endowed the Crown with a political safeguarding role that successive kings have been unable to fulfil in practice. After a brief survey of the tragic modern history of Cambodia’s monarchy, this paper outlines the formal constitutional role of the king, highlighting the central dichotomy between the provisions that promise that the king “shall reign but shall not govern” and those that provide the king a more active role as “guarantor.” The paper highlights how this fundamental ambiguity has been borne-out publicly, by focusing on a handful of specific instances in which both King Sihanouk and King Sihamoni are understood to have been strategically absent from the country to avoid signing controversial legislation. Short of providing a veto power in the legislative process, the king’s safeguarding role is shown to manifest in the symbolic denial of royal legitimacy.
Proportionality purports to contrast means with ends to decide whether a specific rule breaches the Constitution. The chapter starts by analyzing discussion of the 2016 agreements between the Colombian government and the FARC guerrilla in the Colombian Constitutional Court, whose justices split over the standard of review to be used to decide the scope of the special legislative powers conferred to the president to implement the Peace Agreement. Part of the Court believed that those special presidential powers were to be scrutinized under stringent standards similar to those applied in judicial review of emergency powers. Others pointed out, by contrast, that those powers were to be deployed not in an emergency setting, but in a transitional one where more lenient standards of review apply. The chapter suggests that this debate between exception and transition illuminates the analysis of how judicial discourses build relations between means – legislative and executive norms – and goals – attaining peace – adding dimensions to the proportionality/necessity framework as a field where judges deploy their powers to exert political control over other public branches. While the Court framed the debate around the concept of “necessity,” Colombian constitutional discussions suggest that necessity and proportionality could even be interchangeable concepts.
The chapter discusses distributional analysis as a method of legal analysis interested in understanding the consequences of rules. While recognizing that this method shares this goal with proportionality analysis, the author intimately discards a reconciliation of both based on their different relationship to a theory of democracy. The author argues that proportionality analysis is wed to a vision of judges as restrained by the commands of legislators (or constitutional lawmakers), while distributional analysis sees judges as political actors entrusted with realizing the goal of redistribution. The case of gender mainstreaming is used to illustrate that arguing in favor of the use of distributional analysis does not mean forcing judges into continually adopting structural injunctions, nor provokes such levels of polarization that the sought-after redistribution is sabotaged by increased levels of countermobilization or backlash.
Nearly a million people dead and counting. More than 77 million infected, a little less than one-fifth of the total infections worldwide.1 The United States has had more deaths than any other country, and its COVID-19 death rate of 276 per 100,000 people is the highest among the world’s wealthiest nations.2 Blacks, Hispanics, and Native Americans are hospitalized and die at significantly higher rates than whites.3 Some bright lights exist too, one being the speedy development of vaccines and their deployment in 2021 – although there, too, both the national government and the states have sometimes stumbled.4 Another is legislative enactment of major fiscal measures which sustained individuals and businesses in the face of economy calamity.5 Still, by many public health measures, the United States’ response to the COVID-19 pandemic has been a governmental failure.
American constitutionalism consists of two quite foundational, conflictual, but ultimately interdependent understandings of the presidency – what we might think of as the president’s “two bodies.” On one view, the presidency is an individual – a “he” (maybe one day “she”). Presidential power is individualistic along three dimensions: it is singular, temporary, and personal. On the other view, the presidency is an institution. It is composite, permanent (or at least indefinite), and impersonal. Ever since George Washington embodied the idea of an institution still in the making, we’ve had this deep tension – these competing impulses between a personal or charismatic president and a more impersonal and deliberative institutional presidency. Public law reveals different perspectives on how to manage this duality. But public law cannot resolve it. Rather, the president’s “two bodies” is the defining ambiguity of the constitutional office. It is the conception on which our understandings of presidential power rest.
Forty years ago, the Supreme Court created a new doctrine to protect property rights, called regulatory takings. That doctrine is an answer in search of a problem. The well-established law of eminent domain had developed over a century ago relatively clear guidance on how to distinguish between government actions that took someone’s property, thus requiring compensation, and government actions that merely regulated property and did not require compensation. Ignoring the long tradition in eminent domain, the Court has created an entirely new, completely incoherent, and fundamentally flawed constitutional jurisprudence that hampers the ability of governments to address the critical threats of climate change. But even within the Court’s incoherent regulatory takings doctrine, there are lessons for state and local governments on how to better prepare for disaster resilience and address the inequitable effects of climate change. This chapter explores the constitutional limitations on governments in their efforts to regulate to protect against climate disasters and identifies possible strategies for responding to climate events within the parameters of the Court’s incomprehensible property jurisprudence.
A general right to equality is a common feature of written constitutions around the world. Interesting questions arise when one seeks to apply such rights to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities for the purposes of the act. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? The question of how one selects the proper comparator becomes especially significant when one notes that whether the equal protection guarantee is triggered at all depends on the answer to this question. This paper will study how courts in Hong Kong and Singapore have addressed these difficulties. It argues that three categories of approaches can be discerned in these jurisdictions: class-focused, policy-focused, and justification-focused approaches. It critically evaluates each approach, argues in favour of a justification-focused approach to constitutional equal protection in the context of discrete executive acts, and explores the implications of such an approach for the proper relationship between constitutional equality and administrative law.
The 1987 Philippine Constitution entrenched the right to human dignity – a concept that the Philippine Supreme Court has invoked since the 1940s. This chapter argues that Filipino justices have been using“dignity”or “human dignity”to avoid a strict originalist or textualist interpretation of constitutional provisions. They cite dignity as justification to expand existing constitutional rights or to uphold governmental actions that facilitate full enjoyment of such rights. They employ the dignity language mainly to further individual self-fulfilment, autonomy, or self-realization, subject only to select community interests that are expressly recognized in the Constitution. Such understanding and use of dignity in judicial interpretation has been largely shaped by culturally traumatic historical events, Catholic teachings, and nonmunicipal laws. Despite almost eighty years of invoking dignity in judicial interpretation and adjudication, however, the right to human dignity has yet to be consistently and faithfully used for what it was meant to be – a standard principle of interpretation to which Filipino justices must adhere in human rights adjudication.
This article examines the legal arguments that may lead the Supreme Court to overrule precedent and strike down affirmative action in university admissions. Given the critical importance of a diverse physician workforce for our Nation’s health care system, the potential reversal of affirmative action admission programs in medical schools may have severe negative consequences. This article discusses the implications for health care should the Court issue an opinion restricting or eliminating affirmative action in higher education.