In Chile, many commentators, academics and political leaders have spent years arguing that the limited nature of the social rights in the national constitution is partially responsible for the country’s economic and social inequality. It is thus unsurprising that changing the scope of the country’s social rights was a major focus of the recently failed constitutional reform effort. However, we argue that the long-running claim that Chile’s social problems were due to the limited nature of social rights can be thought of as social rights scapegoating, by which we mean that commentators blamed outcomes on constitutional rights, even though there is little evidence that countries’ socio-economic outcomes are a product of their social rights.

With the patriation of the Constitution in 1982, the Supreme Court of Canada (SCC) inherited extraordinary political powers. In response to the Court's expanded power of judicial review, there was a sizeable increase in the number of political actors “intervening” in SCC cases. Scholars of Canadian law and politics are deeply divided on whether civil society participation in the courts—particularly as intervenors—is democratically legitimate. This important debate cannot be settled without an empirical evaluation of who intervenes. This research note provides an analysis of all the Charter cases heard by the SCC between 2013 and 2021. In contrast to the field's dominant theory on interest-group legal mobilization—the Court Party thesis—the findings reveal that equity-deserving interest groups, such as those representing women, have an irregular presence in Court. Instead, powerful actors such as governments and legal associations make up a majority of the “repeat player” intervenors. While further research is warranted, the research note concludes that without the maintenance of sufficient support structures, intervention may be unable to perform a democratizing function.

This paper analyses five constitutional developments in Central and Eastern Europe that can impact the domestic implementation of the UN Guiding Principles on Business and Human Rights (UNGPs). Using Czechia, Poland and Slovenia as examples, the paper highlights four potential drivers, namely: (1) the process of constitutionalizing human rights; (2) the proliferation of the doctrine of horizontal effect of constitutional rights; (3) the constitutional legitimacy of state intervention in the free market economy; and (4) the mechanism of judicial review. Furthermore, the author underlines the most significant challenge, which is increasing resistance to international norms in some countries, e.g., Poland. The paper concludes that the jurisprudence of the constitutional courts can facilitate the domestic implementation of the UNGPs, particularly Pillars I (State duty to protect human rights) and III (access to remedy).

Sri Lanka’s Constitution authorises the state to limit certain fundamental freedoms on the grounds of specific public interests. This article examines how this constitutional limitation regime has become vulnerable to majoritarian influence. It uses a case study approach, supplemented by key informant interviews, to delve into Sri Lanka’s constitutional practice with respect to limitations on fundamental freedoms such as the freedom of religion or belief, and the freedom of expression. The article illustrates how organs of the Sri Lankan state have equated notions of ‘public interest’ with the majority community’s conceptions of ‘security’, ‘order’, ‘health’ and ‘morals’. It argues that this practice reflects a cleavage between the moral legitimacy and the legal claimability of fundamental freedoms of minorities and satirists in Sri Lanka. It concludes that legal regimes designed to guarantee fundamental freedoms offer very little protection to minorities when the underlying politics driving the application of law is majoritarian.

Stefan Eich’s The Currency of Politics reconstructs and contextualises the monetary understanding of some of the most renowned political thinkers in history. By contextualising each author’s conceptualisation (subjective perception) against their respective contemporary monetary frameworks (objective institutional dimension), Eich elaborates a narrative composed of cumulative layers leading to a double conclusion: that money is political at its core, and that current policies are actively de-politicizing money. These relevant findings are the point of departure of a reflection on the role that law, and constitutional theory in particular, must play in the configuration of Europe’s common currency to overcome some of the most acute difficulties the process of integration is currently experiencing. If the triad law, money and public discourse is supposed to articulate social life in the polity, European monetary integration has neutralised them by neglecting the relevance of one of their key features: civic reciprocity. Reactivating the three mechanisms of social integration requires an exercise of constitutional imagination able to integrate interdisciplinary knowledge about money within an institutional framework able to prevent the concentration of unlimited power in unaccountable institutions and to promote and fully exploit the democratic potential of money.

The Tŝilhqot’in Nation has had ample experience exercising its laws and jurisdiction to manage emergencies during record-breaking wildfires and the COVID-19 pandemic. Despite the Nation’s unique opportunity to formally describe and advance its jurisdiction through its landmark Aboriginal title declaration and beyond, in these crises, Crown actors have defaulted to well-worn patterns of colonialism. Through a detailed analysis of recent Tŝilhqot’in experiences of emergency, we argue that provincial and federal responses to these extreme events reveal constitutional habits: patterns of decision-making that emerge in the immediate response to an emergency, so as to appear automatic. Crown emergency responses assume exhaustive Crown jurisdiction and its corollary erasure and dispossession of Tŝilhqot’in jurisdiction. Fortunately, however, habits can change. We show how Tŝilhqot’in responses to emergency reveal alternate constitutional possibilities: habits of coordination, which, through their attention to responsible relationships, build capacity to respond to emergencies and, more broadly, a changing world.

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 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 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.

SmileDirectClub markets, manufactures, and delivers clear plastic dental aligners directly to the consumer: no dental office necessary. This well-known business strategy—cut costs by cutting out the middleman—has in several instances caught the attention of state dental regulators. While the dental boards consider some of SmileDirectClub’s practices to be violative of state dental practice law, the corporation has fought back in federal court, charging dental regulators with antitrust violations and with denying SmileDirectClub its constitutional rights.

The Supreme Court, as noted by SmileDirectClub, has insisted that a self-regulating state professional board is not itself the state, so a board’s actions might be subject to federal antitrust law. In the SmileDirectClub cases, however, state regulators have acted as required by state legislatures and as expressed in state dental practice acts. The boards’ activities here are therefore cloaked in the states’ immunity to antitrust litigation and should be treated deferentially by federal courts. Furthermore, judicial review of the substance of every regulation to which SmileDirectClub objects is inappropriate under principles of constitutional law. In the interest of public safety, courts should permit state dental regulators to fulfill their mandates and ensure that all dental providers comply with state health regulations.