Tushnet ConComp 2008 Outline H

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Comparative Constitutional Law OutlineMark TushnetSpring 2009A+

2 Feb 2009

B/c of pub date of book, dsnt include most recent US Supr Ct decision: STENBERG [sp?] (partial birth abortion act case)

When reading ROE and CASEY, what about them was striking/interesting? The way they discuss the issues:

o role of medical ethics in ROE

o me: role of history of abortion in ROE why relevant?

o me: role of public opinion (in ROE, reference at end of history to recent liberalization of state laws, 13, etc.)

similarly, the back-and-forth about public opinion in CASEY: majority saying it wd be esp. bad to departfrom earlier decision under public pressure Scalia saying: this shouldnt be relevant at all, and puttingthumb on the scales in favor of sticking by unpopular opinion is especially perverse, and in any case, ROEis notso popular

(compare: reference to opinion poll in [Canadian?] dissent)o Opinion styles:

Blackmuns conc. to CASEY as though standing outside of the law, talking about the signif. of a decisionthe way newspaper might.

US opinions: in some respects, aspects very depersonalized: We held The Court, especially in

decisions for the court BUT also: a fairly striking personalization sometimes, especially dissents andconcurrences.

e.g. Blackmuns conc in CASEY Im 89 years old

e.g. Scalias dissent in CASEY? T: Scalia writing an opinion in a very particular style one of its

oddities: notwithstanding its evidently personal character, its joined by 3 other justices!o T: the doctrinal looseness of ROE.

e.g. 18: whether you find right to privacy in 14th Amend [SDP] as we do, or in 9th Amendment its stillbroad enough to encompass decision to terminate pregnancy

T: 30 years on, more scholars wd probably be comfortable w/ a 9th Amendment formulation than

with a 14th Amend formulation. Concern w/ latter: notion of liberty is too unbounded. Versus9th: we cd perhaps give a better account of a more restrictive list of rights under the 9th Amend v.trying to give content to idea of liberty under 14th Amendment.

(note: CASEY dsnt do much independent doctrinal analysis, b/c of emphasis on stare decisis preservingthe core holding of ROE)

Note also: the analytic crucial passage in ROE is this passage p. 18: This right of privacy is broadenough to encompass a womans decision whether or not to terminate her pregnancy. T: For all practicalpurposes, no substantial explanation for why the right isbroad enough, why this is true. (But once itsbroad enough, then the rest of the decision follows.)

Note: ROE is founded on right to privacy v. Canadian decision is based in part on bodily integrity is this a better explanation?

one of Ts favorite articles on ROE: Donald Regans offering a physical, bodily description of

changes that occur to a woman when pregnant: if you were reading this outside of pregnancycontext, youd think: it looks like an illness! rapid gain in weight, increase in blood pressure, etc.

o T: one striking thing about US decisions, esp. v. German decisions: formers treatment of the fetus. What ROE

does is argue:

the state says that the fetus is a person entitled to protection under the 14th amendment

and our way of protecting the fetus is outlawing abortion

Blackmun says: thats wrong the fetus is not a person w/ in the meaning of the 14th A, all sorts ofpeculiar/bad conseq.s would follow: state would not only be allowed to have restrictive abortion laws, butwould require it. + odd discussion of counting fetuses in the census

and woman has right to privacy, etc.

Then Blackmun says: so what state interests are asserted to justify restrictions on that right? Interest in thepotentiallife of the fetus. T: very peculiar formulation! The fetus is alive! Maybe you could say: thepotential life of a post-natal human being.

T: his point here: the treatment of the fetus in ROE doesnt capture one thing that matters to a lot of peopleabout abortion: that it involves the destruction of a thing that is a member of the human species. (This isnt


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to say that ROE is wrong just that theres a fairly large gap not quite an analytic gap, but a perceptualgap.)

If you look at the courts internal documents, its quite clear at the time of ROE, nobody thought thatchoice/abortion would be a big issue including the dissenters. Why thats so might have something to dowith the social stratum of the justices.

o T: one impression of ROE among non-lawyers is: the statute-like character of the decision, esp. the summary at

end, 23.

Contrast this w/ Canadian opinion, not very statute-like.

But the German solution is even more statute-like.

o note: a lot of STENBERG is devoted to a description of the procedure outlawed by the partial birth abortion acto Tushnet: more history in CASEY than in ROE: in latter, its offered as background rather than justification. BUT:

discussion in CASEY re: changing social norms / way that generations of Americans have structured their livesaround the availability of abortion (reliance interest: we should not overrule if, among other things, there has beena significant amount of reliance on the prior decision) this really is used to justify the decision.

T: characterizing this as reliance is unusual. Hard to see what would be disruptive if you change the rulesof abortion here. It cant be that people actually engaged in intercourse relying on the availability ofabortion (or even if plausible, wd only apply for very short period of time). This cant be the idea.Rather, its that people havestructured their lives aroundthe relatively easy availability of abortion.Women have entered the paid workforce, etc., based on assumption of ready access to abortion ifnecessary. BUT: this isnt really reliance, b/c when you change the rules, they can restructure their lives.[me: well, when put that way, maybe it is plausible e.g., some number of women are in workforce rightnow who wouldnt have taken that risk if the uncertainty re: a pregnancy were there?]

This also raises questions ofevidence: how do they know that people have been structuring their lives inthis way?

This also raises question: should judges be making decisions based on considerations like this?

Canadian case: MORGENTALER (1988)

o A criminal prosecution of doctor for providing abortions. Note: 77: the govt is appealinghere from an acquittal by

a jury.

BG: Morgentaler is a public figure in Canada, an abortion rights crusader. Systematically opened abortionclinics in var. provinces. Here, he opened a clinic in Quebec and Toronto, was prosecuted, said: thestatutes unconstitutional andI have a criminal law defense of necessity. He makes latter argument tothe jury in both places, and its generally thought that jury acquits him in both cases b/c of this.

Then: the ground of the govts appeal is that he shdnt have been allowed to use this necessity defense.Appellate court in both Quebec and Toronto says this is right. Quebec came first, made him start servingconviction immediately. He served about 6 mo.s, then legislature changed the law so that court couldnt do

this. So: in Toronto, they just remand for a new trial. B/c hes preserved his objections, he goes up to Supr Ct.

o Note: T: the Canadian decision was the visible product of a reform movement.

Versus in US. There was an abortion law reform mvmnt, as Blackmun hints. But its notembodied/embedded in ROE.

One way of symbolizing that: Canadian decision has the name of abortion rights crusader in title; USdecision has name of anonymous woman.

o Note: Do differences in procedural posture behind cases affect outcomes?

Rem: ROE is an anonymousplaintiff seeking injunctive relief (declaratory judgment) to allow her to get anabortion

note: only 1 of the 30-40 post-ROE abortion cases Supr Ct has considered were criminal and that

was of a non-doctor and Supr Ct said: yeah, you can prosecute him

and rem: GRISWOLD, it took over a decade to find a way to get over the justiciability hurdles statutewas prohibition on using contraceptives. Men tried to sue for declaratory relief. Finally, PlannedParenthood opened a clinic, then were arrested for aiding/abetting use of contraceptives. As in Morgentalerrequired a crusader.

T: I dont believe, but: it could be, people might think that judges would be more reluctant to find in favorof the government when actual jailtime is at stake v. in more abstract setting. So maybe ct in Canada isindisposed to send M to jail.

T: The concreteness of the case might affect how the judges talk about the problem in front of them.

Another difference: ROE is prompted by a statute that says: no abortions; v.o What is the holding of the Canadian case?

There is a protected right to bodily integrity (78)

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T: This right can be regulated by the govt if done in a fundamentally fair way but this regulation isnt fair(86), b/c it holds out a hope that you can get an abortion but in practice (in the world as it operates), youcant.

its like theyre lying to you!

the world is organized so that you can never satisfy these conditions: there arent enough of these

committees at hospitals where these abortions would be performed

T: a procedural ruling: in the sense of, the Canadian justices, taken as a group, acknowledge the

existence of the interest of the fetus, and say that the Canadian Parl can enact legislation that is anappropriate accomodation of the interest in bodily integrity and the interest of the fetus BUT,

this particular statute, b/c of the way its implemented, is not an appropriate accomodation T: Given all of this, what kind of statute wd you urge the Canadian Parl to draft? Legislature could respond

w/ a relatively restrictive abortion law. (Not true in US: essentially no ability for legislature to respond w/substantial restrictions.)

After MORGENTALER:

Canadian Parl (conservative govt in power at the time) tried to draft law (the person in charge of

the relevant ministry introduced legislation into Parl, but it wasnt introduced as govt bill thus afree vote, no party discipline, members of party cd vote their conscience),

passed lower house,

was struck down by Senate in tie vote (controversial: Senate rarely if ever exercise any indep.

authority; entirely appointed body; no one thinks it has any democratic legitimacy, does nothing)

so, basically, have no criminal abortion regulation on the books at all

So: differences on the surface btw US and Canadian decision:

o Procedural

o Substantive

o BUT: on the ground, no diff.s btw getting abortion in US and Canada; or even more available in Canada, where

theoretically it could be largely banned.

How are US and Canadian decisions presented differently?

o Canada and UK (House of Lords which will soon be converted into a Supreme Court) has (seriatum?) judgments

(one judge after another), while US Supr Ct has judgments by the court (per curiam)

until Marshall, US Supr Ct judgments were seriatum as well: based on theory that if we speak asinsitutionalized court, theyll receive greater respect than if seen by public as just the decisions ofindividuals, even if they all agreed

Marshall also worked very hard to suppress dissentso Q: does seriatum really have delegitimizing effect?

o ALSO: in seriatum decisions, often hard to tell what the actual rationale of the judgment is. Note: this leads to incredibly robust literature in Commonwealth countries trying to distinguish between:

ratio dicidendi [sp?] (what all five judges agreed on) v. dicta

v. this literature is incredibly weak in the USo T: Speaking in one voice may be institutionally valuable.

Consider: French Const. Council: dissents are prohibited (actually illegal for a judge to dissent in France.)(Was the case in Germany too, tho they have now changed the law.) (In fact, in France, illegal for you tosay in any venue that there were people who disagreed with the judgment of the court.)

The reason was that the judge was the mouth of the law: it wasnt the judge speaking, but the law. And iftheres dissent, then it looks like: its just the judge, not the law.

Some say: this flows from civil law system its supposed to be exhaustive. Code just answers allquestions.

but no reasonably sophisticated code lawyer thinks thats accurate descrip. of decisionmaking in

code system

tom: start w/ p. 107 German case and focus discussion on Tribe/Glendon debate.

***

3 Feb 2009

Yesterday, said the pt of this wks reading is to introduce us to the idea of thinking comparatively about law. Well cont. that

today.

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T: in the lit on comp law generally, a very unproductive discussion of whether comparativists should look more for

similarities or differences. Easy to see how the controversy arose historically. Hard to see how its terribly interesting in thatform. The way to think comparatively is to see similarities anddifferences!

Yest, T tried to elicit pts of both sim. and diff. btw Canadian and US opinions. We had more pt.s of difference than similarity

the Canadian seriatum approach v. US judgment of the court approach; the relative medical emphasis in US compared torelative absence in Can; substantive emphasis of US approach v. procedural emphasis in Canadian approach.

Useful to defamiliarize yourself from the US approach

Similarities: In Canada, as in US, in practice relatively few restrictions on the availability of abortions in large metropolitan

areas.

The Canadian approach has the following structure: the articulation of a right, coupled with an authorization in thelegislature to limit the right (a general limitations clause). So, what courts do is ask first: is there a violation of a protectedright? And if there is, is it justified by the general limitations clause?

o In Canada, the breadth of the definition of the rights means that the courts will in some ways always find that the

right is violated and all the work will be done on the limitations side.

o In Canada, the legislature can violated a protected right by sneezing.

Theres one celebrated case in which Canadian Supr Ct said: Well, maybe theres no violation of rts here.(Making solicitation of prostitution an offense.) But they said: no need to decide, it fits under generallimitations.

v. US approach: well ask: is this within the scope of the protected right? If not, we dont care, the legislature can do what it

wants.

J. Wilson in Canada = a woman.

o note the personalization of the opinion in passage on p. 107: It is probably impossible for a man to respond

o Generally: One of the things that were looking for in Const. Law is some degree of objectivity its a law forall of

us. J. Wilsons statement can be put into the form of a Const. argument (i.e., part of the right here involves theburden placed on the woman through the pregnancy, and you can only weigh that burden, W says, if youre awoman), but it may err on the subjective side?

o [T = sounds like Wallace Shawn]

o T: Note what Wilson is arguing for:

first, the majoritysproceduralistapproach to the result is fine, because it gets to the result of invalidatingthe law, but its inadequate

second, the court should face and resolve thesubstantive question of restrictions on liberty imposed byrestrictive abortion laws (105)

o Joke fromReversal of Fortune: Dersh to von Bulow: You are a very strange man. von Bulow: You have no idea.

we never have any idea

THE FIRST GERMAN DECISION

In the background:

o Nazi legacy, the idea being: we must recognize some inviolable human rights namely, the protection of the fetus

KEY: Legislature had decriminalizedthe provision of abortion services (under cert. circumstances)

o but court says: it is constitutionally requiredthat abortion be made a criminal offense T: b/c of the historical

background

NOTE: Basic law (Germ. Const.) containspositive obligations, including protecting life. Sometimes known as the state as

organic community. (116)o v. US version: the state as enemy or threat, to be limited

The Germ. Const. Ct. does what it does (says: we have an obligation to protect human life, and the fetus falls w/in that

category) it says: there is a straightforward liberty v. liberty conflict here: liberty of woman v. liberty of fetus. (Glendon-like arg.)

So: we have to criminalize abortion. Does that mean abortions must not be available in Germany? What cd abortion doctorand/or woman say if prosecuted?

o Cd not use defense of justification (this was the right thing to do)

o But cd use necessity defense (this was the wrong thing to do, but we think it inappropriate to punish someone for

this wrongful act) if, e.g., the life of the mother was at stake.o Germ. Const. says: legislature can even specify this in statute the conditions where continued pregnancy is not

exactable.

Legislature can say: under these circ.s, we think its appropriate for woman to seek abortion, dont want topunish her. We dont think shes right, but we understand why she makes the choice.

o The conditions will be the indications. (v. timing model in US)

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o KEY: the indications for a permissible termination of pregnancy are, from US POV, quite broad: there are

eugenic indications (severely disabled child), and even social indications: ct says: situations of social distresscan be an indication of a circ. in which continuation of pregnancy is non-exactable. (119)

Consider tho: if the social distress would be inability to afford raising child, then state would have toprovide welfare, child care, etc. (or abortion would be defensible)

Note: ct wants abortions to be seen as morally troubling, and rare

There are empirical judgments here (me: 122), which also come up in 2nd decision (133)The SECOND GERMAN DECISION (1993) striking down post-reunification abortion law (134)

Law here says: woman wanting abortion can go to abortion provider and ask for abortion w/o explaining why. If she gets an

abortion (in the early stages), that abortion is not a criminal offense. So: early term abortions are decriminalized.o This seems to be in tension w/ first decision

o Why is that okay?

o Note: in first case, Const Ct said: if there are indications, leg can choose not to punish. In second case, leg. said: we

wont even ask about indications. So nobody will be punished. But well stillsay its criminal. Second ct said: thisisnt okay. Let everything else in the new statute stand?

o Again, empirical judgment plays a role: leg saying: if we demand indications, women wont even come in, theyll

get unhealthy abortions. Ct says: leg can make this empirical determination.o T: the most striking part of all this: the rule on public financing of abortion:

in US, its constitutionally permissible for govt to refuse to pay for abortions for poor women throughMedicaid.

v. Germany has following rule (134): if you cant pay for the abortion, the govt mustpay for the abortion.(If you can pay for your abortion, the govt may choose not to pay.)

o So: a key point: US Const is one of negative liberty; Germ. Const. is one of positive obligations. Note: apparently it is the case that abortion rates in Germ. and the US are not that different even tho the law on its face

looks quite different.o (but it is quite difficult to get accurate info on abortion rates, and national level comparisons might be misleading

in Germ, and in US, abortions are relatively easy to obtain in some places, relatively difficult to obtain in others)o (in US, there are no abortion providers in smthg like of the nations counties)

o in Germ, Catholic jurisd.s (v. Lutheran jurisdictions) are where its hard to get

GLENDON VERSUS TRIBE

Glendon: we should adopt more European approach, have courts a) recognize the interest in protecting fetus but b) allow

legislative accomodation. Versus US approach now gives no recognition to fetal life (Blackmun in ROE 22: the closest hegets is recognizing state interest in the potentiality of human life)

o G: recognizing fetal interest would allow interests of all sides in the controversy to be recognized the views of

those who support restrictive abortion lawso This wd assuage the other side

Tribe: US wdnt buy this hypocrisy: pro-life person would look at German situation and say: how can you have a criminal act

but never punish it? This just isnt how we in the US think about rights: constitutional rights should be enforced uniformlyacross the board. Glendons solution would involve disparities in enforcement that US wouldnt accept. (Me: also an equalprotection element in here.) (me: a second claim, dubious, re: US unwilling to accept the hypocrisy involved)

NOTES ON COMPARATIVE LAW

Is a nations Constiutiton a distinctive expression of its history?

o if you think yes, then youll explain variations on the basis of variations in histories

e.g., arguing: US can have relatively unrestricted abortion law b/c it didnt have Germanys Nazi history

BUT: pro-life could say: US did have an era in which human life was disvalued: slaveryo if you think no, if you think there are universal human rights, then youll be attentive to similarities, and youll

think: theyre all moving in the direction of these universally valid human rights or other universally applicablemodes of governmental structure e.g., the availability of independent courts to review Constitutionality

Sometimes the former approach (national distinctiveness) is referred to as expressivism (Ts term that got picked up); the

latter approach is called functionalism (there are these functions that govt perform, and if theyre performed well, theyreperformed the same in every way)

***

9 Feb. 2009

This weeks substantive topic: the relationship btw constitutions and some normative ideal of constitutionalism

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At the outset: Tushnet has discovered that in teaching this, he stumbles in the words ism v ist etc.

Two main topics:

o SUNSTEIN article at start of chapter: Relationship between const.ism and self-governance

o The ethnocentricity of constitutionalism

to anticipate an issue: rise of IHR culture may have overcome these problems

also: well deal with the poss that constitutions can impede the development of constitutionalism (T. thinksO-Ogendo and Lat. Amer. essay author make somewhat diff. arguments about this)

SUNSTEIN article (on pre-commitment, written in context of 1991 E. Euro. constitutional design and the Q of secession)

o a definitional tension btw constitutionalism and democratic self-governance, when latter is defined as the

implementation of the present preferences of todays majority,b/c former requires that some things that todaysmajority wants to do cant be done

e.g. restricting freedom of expression. Assume that stringent regulation of hate speech conflicts w/ 1st Am:then, if you enact such legislation, youve gone beyond the bounds of constitutionalism.

sidenote: a common distinction in the lit.:

o 1. Const.s areframeworks for govt. (O-O says: power map)

o 2. Const.s empowerpeople to do things that they wdnt be able to do otherwise (e.g.

that require coordination, as in Sunsts point re: avoiding prisoners dilemma)o 3. Const. limitwhat people can do (e.g. fundamental rights that majority cant abridge,

as here re: free speech)

Put aside for the moment one of Murphys points, that it is definitional of const.ism that there are specificsubstantive limits on self-governance (much more controversial proposition)

note: the tradition that Murphy is writing in is associated w/ natural law tradition associated w/

Roman Catholic church not coincidental that hes Roman Catholic

interesting guy: writes novels describing politics (e.g. one in which guy becomes Pres., then Chief

Justice then Pope)

Sunstein is saying something different: const.ism requires some limits on self-governanceo Question is: how do you justify limiting a peoples ability to govern itself? CS says: limitingwhat the people can do

(#3) actually can empowerthe people (#2): as the lingo is: pre-commitment strategies (T: one of hishobbyhorses: I think the term pre-commitment is a linguistic error allcommitments are pre-commitments. Hewrote this, had no effect. Anyway, he prefers to call these commitment strategies.) How?

T: One of CSs central argument: Constitutional limitations take some issues off the table.

(general idea seems to be: empowering b/c it prevents us from wasting time)

me: but how is this empowering? its not empowering for a democratic majority to have

something taken off the table if thats what they want! BUT: it might be the case that the battle

would always end up with x winning then and now. So its better not even having the battle, notwasting time on that, if every vote is going to be 70-30 and take up a lot of political capital.

o student: BUT: even here, if you keep silencing minorities, the 30% -- or if you do it on

enough issues, affecting different minorities eventually a whole lot of people will befrustrated, feel that the game is rigged against them

o me: in other words: youre certainly notempowering the 30%

o also: me: These people might even prefer to waste time on debating and losing their

issue again and again

T: The structure of CSs arg. makes sense: if youre the leg. and Const. tells you that some issues

are beyond leg. competence, then you wont spend time on those issues. Youll have resourcesfreed up to spend on things that are within your competence.

T: note: CS uses slavery as example of an issue taken off the table. Well, it was taken off the table

until Civil War! And you cd argue we had a Civil Warbecause slavery was taken off the table!

o CSs other example: abortion. Also seems to T not a good example of taking issues offthe table.

T: Various ways of taking something off the table, and problematic consequences that

may follow from the technique:

o 1. Quite specific provision

a. Unanticipated change can be a consequence: later on, we realize we dontwant this off the table, were screwed

b. Leaching meaning: the specificity may be lost, or the scope may shrink, etc.

c. T: Constitutional workarounds so even if you take a specific issue off thetable, people might find a way around it

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e.g., very recently: the emoluments clause of US Const.: the thing that

Hillary Clintons appointment to US Sec of St violated (as well as 10-20 members of Congress before) (she was elected 2006; in 2008, thesalary of Sec of St was increased; etc.). Everyone is happy w/ outcome,but you have to do a lot of fancy interpretive work to make this okay

note: T thinks there are even ways to do Const.l workaround of 2-

Senators-per-state problem: you could get proportionate representationin Senate using these techniques after 2-3 rounds

note: T also thinks you cd easily amend the unamendable 2-Senators-

per-state rule in two stage: first amend the unamendable clause, thenamend the actual procedure.

o Actually, T thinks you cd do it in one stage, wd be seen as

implicit repeal of unamendableo 2. General provision (more common in US)

a. Judicial interp. cd. put it back on the table and judicial disputes mightthemselves be a form of the issue being on the table

T: In sum, not clear to him that CS account of taking things off the table works as a

justification for constitutionalism

T: Another of CSs central arguments: me: Some of the limits may only limit the people from giving awaytheir power, from destroying democracy: these would be limits that protect thepre-conditions ofdemocracy from abridgment by popular will

e.g. freedom of speech, right to vote (213)

me: but even this could be questioned as Vermeule might: youre still taking away the peoplesfreedom to choose a tyrant. This isnt really empowering the people who wantthe tyrant.

T: If, every year, it were up for grabs whether the election would be proportional or first-past-the-

post representation, that would consume an enormous amount of time, and that would be a wasteof time. Why is that a waste of time? The controversial proposition: each time, youre behind aveil of ignorance, you dont know what the outcome will be under either system, so theres noimportant political choice here just a waste. BUT: T: were really notbehind a veil of ignorance!We know what conseq.s of various systems will probably be.

T: A connection between two previous points: suppose you are on the persistent losers side of 70/30abortion debate. The Q for us is why those people keep at it. Why dont they devote their energies tosomething on which they cd win?

a genuine puzzle for a Sunstein-like account

one reason they might keep raising issue is that they think if they raise the issue enough, theyll

eventually become winners: become an important component of one of the major pol. parties theyll give their 30% to that party on an issue we dont care about like, say, health-care reform, ifthat party will go along us re: abortion

SO: you canpersuade ORget yourself in a position to bargainby keeping the issue on the table.

me: CS dsnt say this, but: the peoples preferences may be contradictory, impossible to satisfy in any case.If their choice were not limited, they might satisfy none of their preferences. By taking one off the table,you might empower the people to at least have one of their preferences satisfied.

NOTE: a practical objection to CS view: can you really take issues off the table so long as we havejudicial review? Judges could always say that the Const. dsnttake an issue off the table. (e.g. freedom ofspeech: maybe framers wanted to take this off the table but people keep trying to regulate it, hoping thatjudges will say that regulation is okay)

o [sidenote: how evaluate the success of a Const.? longevity? perhaps tho we probably want to have this level off

though: US Consts 200 years longevity Germanys 60 years both pretty good] and how much of longevity is attributable to Const? the reading on pol. culture suggests that itmight be

just as/more important/nec. cond. for successful Const.o sidenote: T: how much can a lawyers way of thinking contribute to an insight about compar. const. law?

a genuine question. To some extent, T and Vicki Jackson disagree to some extent. T thinks that pol. scienceis perhaps more productive perspective than law, legal thinking.

SUNSTEIN: IN SUM:

o CS thinks we can reconcile con.ism and dem. self-gov. by a commitment account in which founders empower

themselves by taking some issues off the table and enacting some provisions that are in their long-term self-

interest by taking things off the table when theyre short-sighted:

1. free up political space for other political concerns (the take off the table issue above)

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2. implement substantive policies that are in long-term interest of people but might not be in short-

term interests (e.g. prisoners dilemmas, etc.)

o and our conversation has been skepticism of above:

1. if its in your long-term interest not to do something, you have to have some story about why the

framers are able to perceive the long-term interest, but not the people at the time theyre making the

decision

[well talk about this with Ackerman]

but CSs ex. is dormant commerce clause: there wd be interstate trade wars, tariffs

T: if the framers can figure that out, why cant NJ citizens figure this out at the time theyre

considering doing it? T: not clear why 2. its not clear that you can do this as a factual matter, b/c of quite specific general provision

note above

The ETHNOCENTRISM ISSUE: (T: unfortunate that the best we cd find arent particularly clear writers)

o This concern has been most clearly articulated recently in what was called the Asian values debate:

for very specific political reasons, political leaders in Singapore and (?) Malaysia said: were gettingcriticized for our practices b/c were repressing our people in a matter inconsistent w/ constitutionalism but that crit is ethnocentric: it draws on a notion of con.ism that is western in its essence, and we haveAsian values

what are these Asian values? to the extent that there was specific content, it was: West is highlyindividualistic and W.ern con.ism rests on this; v. we in Asia are more community-oriented, and ourcon.ism implements this notion ofcommunitarianism

as a footnote: this debate fairly rapidly petered out, for three reasons:

1. the people asserting it (var. specific authoritarian leaders in Asia) were clearly doing so to

deflect crit of their regime these were not deeply principled arguments clearly political, of themoment, dressed up in principled terms

2. it rapidly became clear that w/in these nations there were people fully Asian! who had same

conceptions as W.ern critics of the regimes

3. (maybe indication of Ts ethnocentricity) Whenever specific examples were given of

consequences of Asian values for Con.al norms, it turned out that the arguments were argumentsoverproper interp. ofuniversally acceptednorms should be

o e.g. hate speech: given our communitarian orientation, we think that hate speech is

particularly troubling, b/c it demostrates disrespect for others in the community andgiven our social circ.s, hate speech is likely to be socially destabalizing like communalriots, communities whipped up by hate speech so we regulate hate speech more

stringently the problem with this is that these are perfectly sensible components of an

argument for regulation of hate speech in the West. The values here are the same the only Q is interp.

[student note: also, all the so-called Asian values were actually Chinese, and more specifically,Confucian. Respect for age, etc. Not all of Asia! (But in Malaysia, they cdnt say Chinese b/c of delicatepolitical/ethnic situation there.)]

[T: Parallel: the debate may also have been underlied w/ unstateable arguments re: Singapores place inAsia.]

Anyway, the debate as a debate is over the circ.s have passed, and the analytic point seems notsupportable. BUT: it raises the Q whether constitutionalism is itself ethnocentric.

Last five minutes: sidenote: T got interested in Singapore after brief visit there b/c it seemed to pose the poss. of what he

called authoritarian constitutionalism had some of the normative stuff, but is also a sort of authoritarian state. Quite

puzzling. (Also, not clear that any place other than Singapore fits this category. But maybe Iran? They didnt like thiscomparison) SO: Can you have authoritarian constitutionalism?

o You might start out w/ a purely authoritarian state it has a written Const., but all that the Const. says is:

authoritarian leader has absolute control.

e.g. the pre-1989 Communist Const. in China w/ provisions about Comm. Party being leading rep. ofpeople were the written expression of authoritarianism and it was significant that when Comm Party triedto reform, first thing they did was take these expressions out of Const.

o Versus: rule of law const.ism: We the govt can do anything we want BUT: we have to say were going to do

it in advance, and follow procedural rules

e.g. some people see Singapore this way.

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e.g.: someone detained w/o grounds: court ordered release on technical grounds. As a result, he is released,driven to home. Singapore congress amends legislation, he is rearrested on the same day!

Lon Fuller (HLS) (in Morality of Law) famously made arg. in 1950s: Minimal rule of law requirementswere such that a full-scale authoritarian govt could notcomply with the requirements of the rule of law.

T: not sure this is right

o Argument re: Nazi Germany, later applied to Apartheid South Africa: the dual state:

a const.al state re: Aryans; an authoritarian state re: non-Aryans

Q about whether this is a stable system

Q for tom: whether this set of categories is now foreshortened or collapse by the existence of universally-agreed-upon IHRL

***

10 Feb. 2009

CATEGORIES re: CONSTITUTIONALISM

Frame: (me: spectrum from non-constitutional state to fully constitutional state)

o Purely authoritarian govts

rulers will unconstrained by anythingo Rule of law govts

has nosubstantive restrictions on what it can do, so long as it obeys variety of procedural restrictions

Lon FullersMorality of Law: rule of law req.s that rules be:

public,

announced in advance,

six other criteria

T. claimed that one can have a state that is close to authoritarian, yet complies with rule of law: story re:Singapore dissident yesterday

Yet Fuller would say in response: the fact that the rule (the technicality) applies retrospectively does placelimits on what the authoritarian govt might want to do (b/c it allows dissidents to read the rulebook andfind loopholes, a way of doing something that isnt prohibited in advance, etc.)

T.s view: Fullers view is overstated: formal constraints of rule of law arent enough to prevent a quiteauthoritarian govt

(Hong Kong may be a rule of law state moving in the direction of purely authoritarian)o Dual state

one class of people fully protected by substantive limits on govt power, get the full benefit of the law

another class that isnt: Africans in Apartheid S. Afr., non-Aryans in Nazi Germany subject to arbitraryrule

T: whether you can sustain the dual state in the long-term: not clear

(S. Afr. and Germany moved from dual state to Const. state)o Constitutional state

the fully constl state: everybody protected by the kind of substantive limitations that are invented in thenotion of Const. as limiting power

Empower (Sunstein)

Limit

o Murphy says (217+):

the core topic of Comp. Con. analysis shd be the Const.l state we should be focused on the way Const.slimit govt power: the subject matter of Comparative Const. study is limitation on govt power. That

limitation can take two forms: Substantive limitations (speech)

Structural limitations

Prominent Brit. const.ist: Parliament can lawfully enact any rule thats compatible w/ the physical laws ofthe universe. So: no substantive limitations, as a matter of Brit. Const. theory until some time late in20th C.Nonetheless, everyone agrees that Britain is a constitutional state: which means that the limitationsemerge from something in the structure of Brit. politics, or Brit. pol. culture, etc.

Note: leading competitor casebook to our book is called Comparative Constitutionalism morecompatible w/ Murphys approach

o v. Murphy: Ethnocentricity critique: (McWhinney, 228+)

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Murphy is ethnocentric to say that limitations on govt power are central to constitutionalism andcomparative const. study.

MORE:

Sidenote: Michelmans approach to Con. Law: do a comparison of US Con Law and S. Afr. Con Law one semester just on

that very deep probe into the nations systems.o v. Tushnets approach, looking at breadth of systems, variety of possibilities

Sidenote: Big debate: Transplants of private law: do they work?

Law & econ. people will tend to say: yes b/c if legal rule reduces transaction costs, it shd work the same

way Others are more skeptical

o BUT: in general, theres a sense that transplants ofpublic law wont work (goes back to MontesquieuLEsprit des

Lois: each nations law emerged organically from its history, etc. idea develops in Germany also)

comparative private law scholars get around this by saying: transactions happen across borders

Note: for exam, look back over thesis of each essay

Ts position on ethnocentrism, again: not clear to him that const.ism is ethnocentrism in the way that McWhinney suggests it

might be. Nor is it clear to him that its intellectually productive to limit our focus of concern to Const.ism defined as limitson the state (Murphy).

o note: Li Quan-Yoo (sp?), still alive, running things in Singapore (tho no longer has an official position) important:

he was the leader of the Independence Party the founding leader.o Recurring theme: the role of the founding leader in shaping govt institutions

o Anyway: some of the things you might want to say about the Sing. institutions cant be said w/o looking at its

history, national life, etc. (what T. called political science)o BUT: Compar. Con. Law requires you to be able to saysomethingbeyond references to individuals nations

particularities

Okoth-Ogendo

Leading Kenyan scholar of Con Law and political activist in 2004, was chair of Kenyan Con. review commission

Gets in trouble when Con. tensions rise now something like teacher of public health at small local college

Article: me: Abuse of ethnocentric arguments by post-colonial African military regimes to present Const. as liability, then

reform it (to accord with, e.g., African way of life, etc.; having var. features: imperial presidency, indefinite eligibility, etc.250+), then ends up being sham Const., tool of their oppression

o 1. Why do these countries have a const. at all? when theres no real limitation on govt power

the use of the Const. to differentiate the post-colonial nation from the colonial one

related: to show sovereignty/legitimacy to external world: signals that you are an indep. nation

having a const. is a good way to moving toward becoming a mover on the intl scene

intl law says: youre an indep. state when enough people recog. you as one

BUT: one way to attract recognition is to say: look! weve got a Const.!

[sidenote: but having a Const. dsnt really mean anything: John Brown drafted a Const. for a Free

United States didnt mean anything!]o 2. Then: after writing these Const.s, the people who were empowered by the Const. become authoritarian leaders.

Why?

O-O: b/c these people who became authoritarian rulers decided that being authoritarian was good for them.

T: They might also have persuaded themselves that it was good for country as a whole.

its worth perhaps constrasting these corrupt Afr. kleptocrats, murderers, etc. w/ some leaders who

become authoritarian but dont really do it to become extravagantly wealthy e.g. Li Quan-Yooo 3. How do these rulers do this?

The Const. thats created in order to signal independence provides the basis for the personal enrichment /legal rationale for authoritarianism / personal enrichment of authoritarian ruler

Const. as tool of oppression, as anti-constitutionalism

Sometimes also accompanied by argument that its necessary to have authoritarian hand for a while reason to be skeptical about this claim though b/c often ends up that a while = as long as the guy isalive, maybe even passed on by him to someone

o 4. KEY:

T. thinks that what O-O says is: the Const.s that were adopted in post-colonial Africa impeded thedevelopment of constitutionalism

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But not totally clear: b/c O-O seems to be saying: these bad things happened b/c of provisions in Const,e.g., emergency powers provision BUT: a lot of Const.s have these provisions, and dont have theseproblems

SO: its unclear whether the bad things that happened are really a result of the Const., or wdve happenedregardless of the Const. (student objection)

T. is reminded of first sentence of Fed. Papers: the people of this continent are in happy

circumstance of making Const. by choice and design v. custom and inheritance.

O-O seems to say: bad design choices were made. But then when he describes the social

circumstances to which these design choices purportedly responded, its hard to see any design

choices that wouldve avoided the difficulty afterward. E.g., a problem that comes up: inclusion of minority rights in Const. can lead to problems (or did

he say exclusion?)o Most interesting innovation of past generation: staff the courts w/ people from other

countries

BUT: we shd at least think about the possibilities that there were design choices that

wouldve accomodated minority rights, etc. better than the ones that were made

GOOD EX.: Nigeria had the same ethnic tension-type problems as Zaire, which fell apart

(majority ethnic group problem) former eventually settled on req. that pol. parties be designedon cross-regional lines: no regional party allowed.

o Recurring motif: T. associates w/ Franklin and (Baum?) (earlier reading): For a Const. to work, you need a political

culture. Commitment to constitution among elite, various conditions in population, etc. one factor: if yourtransition took place through military leaders, they might have greater tendency to be authoritarian.

one of the crazy things about S. Africa: a military resistance movement led by someone who has to becalled a saint, didnt do what authoritarian leaders do

Santiago-Nino (T. pronounces Nio)

The development of authoritarian regimes in post-colonial Africa:

1. the social milieu argument

o given the conditions e.g. role of military leaders in the country it was very likely that author. wd. develop,

emergence of con.ism was unlikely

2. perhaps the first arg. is right, BUT there were design choices that cdve been made that wdve encouraged the development

of con.ism or impeded the development of author.ismo T: O-O leans to this arg.

and if youre an academic/activist, you almost have to lean toward this arg. If social milieu is

determinative, theres really little/nothing you can do! wd. mean authors of Fed. Papers were engaged in self-del. when they said America had a choice

o O-O opens up Q of extent to which design choices affect the development of con.ism

and Santiago-Nino makes arg. that specific design choices in Latin America (esp.presidentialism) impeded the

development of con.ism there

o Santiago-Nino: very prominent con.ist / activist in Argentina died of heart attack relatively young

Note: Lat Amer. const.s were designed on basis of US Const. BUT pres.ism in US hasnt turned out the way it has in Lat

Amer

Article = critique of Lat Amer presidentialism

Features of Lat Amer presidentialism that harm democracy:

o T: Once the presidency has become the dominant instiution in the Con. system, then pol. ambitious people will

devote energy to becoming president v. becoming Senator who has no real power leading to further weakening ofother institutions

o Another factor: the president claims (to some extent accurately) to be the only person who speaks for the people ofthe country as a whole thats different from Prime Ministers (selected by governing coalition)

[sidenote: Isr. went through one election-cycle experiment of having PM elected through nation-

wide election: disaster (1998?)

pol. sci.s wd say a predictable disaster]

o Then: For design-related reasons, the Parl./legislature turns out to be paralyzed unable to set coherent policy-

course.

b/c (most scholars say) of election of leg. by proportional representation leads to paralysis

AND thats what distinguishes US from Lat Amero Further strengthening the Pres., who can now say: Parl. is ineffective only way to get things done is me taking

charge

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o IN SUM: Presidentialism + proportional rep. in Congress = disaster, repeated rounds of authoritarianism

very ingenious, but most recent studies suggest its not actually right: if you try to sort countries intothose that descend into auth.ism periodically and those that dont, a lot of things dont matter:

a base level of prosperity is necessary to avoid auth. / sustain con.ism but its surprisingly low

the design of pres.ism and elec. system has almost no effect!

the best, most recent studies suggest that what really determines susceptibility to author.ism in LatAmer is whether you have a history of military coups: then the military feels empowered to intervene. Ifthats the case, then the chance of authoritarianism is quite high.

***

16 Feb. 2009

topics this week:PROCESSES OF CONST.L CREATIONandACKERMAN ON CONST.L MOMENTSandPRINCIPLE & COMPROMISE IN CON. FRAMING(andperhaps TRANSITIONAL JUSTICE issues)

Last week, the topic was distinction btw Const.s and con.ism: We ended w/ disc of Okoth-Ogendo and Santiago Nino both dealing w/ prob. that particular Const.s seem incompatible w/ con.ismlatter has some normative content.

o one of the questions left open something to think about: whether the prob.s that those authors identify result from

(to put it starkly) bad design choices made in creating a Const. for Lat. Amer. countries or Afr. countries OR: thevariety ofcultural/political/historical/social/economic constraintsthat those nations experience at the time of thecreation of the Const.s

o the question posed by these materials is: was it force and circumstance (not much you cdve done about it) or bad

design (bad choices that were made)?

The two things left over were things that come up in Murphys catalogue of things about Const.s: they came up briefly in our

conversation last week, but more explicitly, they were:o 1. suppose you observe a Const. that in its normative dimensions seems fine in const.ist terms its got a decent bill

of rights, a govtal structure that makes possible a reasonable amount of enabling and constraint of the type wediscussed last week and then you observe a fairly large distance between what a Const. is supposed to be

doing and whats actually happening in society. classical example: Soviet Const. of 1937 has a perfectly good bill of rights adopted in middle of

Stalins rule has essentially no relation to whats going on in society

or: you find a free speech provision one that allows restriction in var. enumerated circ.s Euro Conv onHR takes that form. Reasonably long list. (Critics say: covers every excuse a govt might want to use.) InEuro system, that provision works fine. In Singapore, the govt wd use the restrictive provisions to restrictfreedom of expression.

o What do you call Cons.s in cases like this? Murphy, simplified, says there are two poss.s:

a. The Const. is a sham created for some reason, but not designed to have any operative significance.

when you see a sham Const. you do want to wonder: what is the reason for creating it? not always

easy to figure out. Propagandistic poss.s? But who is going to be fooled by, e.g., Sov. Const. of1937, except those who didnt need it to be fooled

b. The Const. as aspiration people w/in the system will say: of course were not doing this now, for a

variety of reasons, but we hope this is what well be able to do in the future and we hope that writing thisdown will motivate political actors.

in Singapore, this is how Li Quan-Yu articulated what was going on

v. sham, a much more benign interpretation of distance btw document and reality on the ground

NOTE: can also serve to keep people in order if they believe its a promise, going to happen one

day.o [distant sidenote: is S. Afr. Const. more social democratic or more neoliberal? (Note

these as Ts terms for these 2 directions.)]o [also: keep in mind throughout these discussions assessments of Const.s, even USs

must keep an eye on divergent interp.s of Const. interpd one way, might be a sham;another way, might be real.]

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CREATING CONSTITUTIONS

First, in the chapter, T goes thru a variety of processes for Const.l creation

If you read most theorizing about the creation of Const.s, the prob. the theorist will try to confront is usually: A Const. is

designed to bind the future, to tell lawmakers in the future what they can and cant do; the theorists then wonder: well, how isit that the people today can impose constraints on the people tomorrow?

o The US versions: the dead hand of 1789

The theorists solution is captured by the distinction on p. 275: thepouvoir constituentand thepouvoir constitu. The

former is completely unlimited: at framing, the people can do whatever they want. One thing they do is set up institutions for

governance. BUT the bodies that they create (the constituted power) are limited by their choices, cant do whatever theywant.

o SO: two levels

o (me: arent these two terms implied in the question, not helpful at all?)

o T: Acks notion of Constl moments tracks this distinction.

If you conceptualize things in this way, you have to ask yourself: how do the people go about doing their constituting?

o The standard answer = the constituting people create a constituent assembly to write the Const.

the basic idea being, you move outside the framework of the then-existing constituted power so that itsno longer Congress, but an extra-legal body

and as a purely technical matter, this is going to have to be some subgroup of the people: somebodys goingto have write the damn thing!

o Then the constituent assembly submits the draft in a referendum to the people as a whole

o And the people can revise

o Result: new Constitution.

First problem: what are the rules for selecting the constituent assembly? Where did they come from? The rules have to be in

some sense extra-legal outside the bounds of the existing Const.o in Acks work(outside excerpts in book) he argues fairly forcefully that the Constl Convention of 1787 had

exactly this extra-legal characteristic: there was a movement in the mid-1770s, people in N. Amer. orgd into theConfederation of the U.S. and there was widespread agreement that Confed. Const. didnt work very well.Congress of the Confed. agreed, so it proposed the calling of a convention to consider amendments to the Confed.Const. In order to amend it, you had to have unanimous agreement b/c it was a confederation, a treaty and thatswhat intl law says about treaties.

o But once the delegates arrived, decided it wasnt worth amending decided to write a new Const.

RI didnt participate in Conv. at all

and by end of process, two states had left

and NY was seriously unrepresentedo Then: asked: how will we make this take effect? (given that RI wont go along, etc.)

Decided: Const. will go into effect when of the 13 states agree to ito Ackerman says: this is clearly extra-legal. Violated what they were asked to do. Violated Confed. Const.

o [me: curious: was US Const. really a violation of AoC? It never explicitly renouncedAoC. Could we imagine

AoC still being in effect in theory? Like if several nation-states had a treaty, and a group of delegates was sentto revise the treaty, and then the delegates decided to merge into a union, have a Const., propose it to the variousstates, and anyone who signs on can join, those who dont wont be required to. Only if we erroneously view theAoC as a true Const., v. a treaty, does the Const. Conv. appear a violation of AoCs, v. simply outside of

them?]

T: When the Convention concluded, the Continental Congress (i.e., AoC Congr.) basically sent a letter tostate govts enclosing a draft of Const. and commending it to state govts didnt endorse it, but didntoppose it either.

o T: KEY POINT: This process the constituent assembly step has to be extra-legal, outside the bounds of theexisting Const. In theory, anyone could do it a group of law prof.s cd get together, decide to draft a Const.

in these drafting processes, there are very bizarre moments, e.g., Czechoslovak. Const. was done in round-table process. Negot.ors said: here are broad contours of what we can agree on. Then they said to bunch oflaw prof.s: draft a Const. Then law prof.s did in 48 hours non-stop drafting.

Even in case ofIsrael, legislature is free to vote to appoint a constituent assembly and draft a new Const.,butthis wdnt be a power that wasgiven to them, wdnt be a reflection ofpouvoir constitu.

o Note: in these negotiations, those who have power already get included those with the guns (E. Euro. Comm.

parties), those with the capital (S. Afr.), even if they have no moral authority whatsoever. (Note the quote Georgiangirl in class read: everyone had to be given seat at the table, piece of cake, ended up being 180 or something, andthey didnt get anything drafted.)

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tho the US didnt have this problem: loyalists left, went to Canada or Great Britain, or Caribbean theyjust werent around, so drafters didnt have to deal with them

eliminated a source of design problem

these days we call this ethnic cleansing and it has a bad name but no question that it does ease the path todesigning a Const.

Q: Could the existing legislature draft a new Const. and present it to the people for ratification? If so, what might you worry

about? Why might you prefer a constituent assembly as a drafting body?o Ackerman wants clean break, constit. assembly, so that people will have a less short-term-political, more long-term,

perhaps less self-interested perspective, behind a kind of veil of ignorance

o Another concern: the existing legislators will draft Const. provisions with an eye to their perpetuating themselves inpower, whereas constit. assembly elected for sole purpose of drafting a Const. might not

note that referendum is usually an up-or-down vote (you vote for whole package or against it), whichmakes it poss. for self-interested legislature to get away with this, so long as they solve enough problems inaddition

Note re: referendum: sometimes when theres a lot that people can agree on but some smaller subset ofissues that people cant agree on, people try to do referendum w/ two votes:

turns out, this dsnt work well: what happens is that first part gets agreed to, second part gets voted

down resulting in incomplete Const that dsnt really solve the prob. or second part narrowlypasses, and then you get same conflict between narrow majority and minority that you wdvegotten with single-vote referendum

Alt.: Poland just replacing its existing Const piece by piece until it had a de facto new one

Note the Israeli mechanism: use the existing Parliament as the drafting body (see Jakobson piece)

they originally decided to write a Const. piece by piece

what happened was: Parl. elected at some point, govt introduces new basic law, and

accompanying that is a declaration that the Parl. is now sitting as a constituent assembly

BUT: b/c the electoral incentives work diff.ly on Constl design and on e.g. doing budget, this is

viewed as a bothersome procedureo Also, the people youd elect to build bridges, etc., might be different than the ones youd elect to draft a Const.

S. Afr.: a new model of Const. development: what happened there was two-stage process:

o at stage one, essentially a round-table negotiation, solved some of the easy design questions, identified a series of

basic principles that a final Const. had to adopt.

They put in place a new Parl., and that Parl. creates a new Const.

BUT this puts existing power at risk

o SO: two stages:

1. an interim Parl. will draft an interim Const.

2. then final Parl. will draft a final Const., which will have to be certified by a new Const. Court.

in the event, the Const. Court did invalidate some of the proposed provisions of final Const.

thats good, b/c then everyone cd say: they didnt just rubber stamp

BUT: w/ one important exception, the things they invalidated were quite minor e.g. a provision

for having a state auditor didnt give the auditor sufficient independence from political control, asrequired by principles in interim Const. the one exception: provision for amending bill of rights,they said, was too easy. And this was corrected. BUT had its own problems. Amendment wd nowreq. 2/3 Parl. ANC got 65% in 1st Congr. Soon, tho, they got 67%+, and to today can amend atwill, which creates further problems for Const. Court.

A transition to the next topic: when the new post-invasion Iraqi Const. was adopted, there was some Q about whether it shd

be done as a one-stage or two-stage process. They opted for former negotiations to develop new Const., drafted, ratified byreferendum.

o (some say two-stage process wdve been better: unresolved tensions cdve been negotiated out)o The new Iraqi Const raises another set of issues: the imposed Const.

o military occupiers

o T: the Iraqi situation looks more imposed than internally developed (Feldman might disagree)

o BUT there are two enormous successes of imposed Const.s: Germany and Japan after WWII

stories are a little different, tho not as diff. as sometimes asserted

Japan: MacArthur had staff write the Const. no input/participation from Japanese national. There wasone woman who was of Japanese origin and on drafting staff, who wrote in a gender-equality provision. (T:First such provision in any Const. in the world?)

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the Japanese Parl. came to MacArthurs office and said: we understand that youve written a

Const. for us lets take a look at it, and well see what we shd do.

MacArthur said: well, you can look at it, but this is what youre going to adopt.

T: I dont fully understand how this worked

They said: what youve given us is something written in informal Japanese, not the way we really

write our legal documents. So well translate it into the other way of writing. And they did. Andthe translation no one believes its unfaithful that apparently was sufficient to satisfy theJapanese Parl. and citizenry that this was sufficiently domestic in origin to be a legit. JapaneseConst. T: Last part is a mystery to me. But this is what all the historical accounts say. The

translation was a really significant step in getting the Japanese to accept the Const. Its also often said that US had to do the drafting b/c trad.s of con.ism in Japan were far too weak

for there to be domestic source.

Almost certainly overstated: there were Japanese liberal constitutionalists. Not terribly influential

w/in Japanese legal community, but also not marginalized.

Germany: Prior to Nazi take-over, had a liberal Const., and very sophisticated liberal thinkers. Many leftduring Nazi era, not all came back to participate in drafting process. So the Germany Basic Law of 1949really is best understood as an imposed Const., but one that drew significantly on domestic Germanthinking.

o How could an imposed Const. be successful?

1. It might not be successful right away, people might not buy into it right away. But if it works reasonablywell, they may come to accept it as their own.

BUT: the Germ and Jap Const.s were accepted much more rapidly

Clearly, in Germ there was buy-in from the beginning repudiation of Nazi

In Japan, a little more puzzling why there was buy-in from the beginning

o perhaps partly b/c MacArthur did not insist on removal of emporer

o allayed concerns by elites

Note: we usually think of Const.-making, the whole process above, as happening in fairly short period of time

o BUT: Poland: a complete replacementof Const., but over extended period

reason for gradual process was: not poss. to get agreement early on but as time passed, people werepersuaded

ACKERMAN

We give you this excerpt from Ack focused on C. and E. Euro. What he says is Const.l adoption, to be successful, must

occur in constitutional moments. Writing shortly after 1989, he says: I think that C. and E. Euro. may have lost a Constl

moment.o Hes clearly wrong in saying that as a general matter, the transformations in C. and E. Euro. lost the Constl moment

o But he is right in saying that in the immediate transition period, no large-scale Constl transformation occurred

o hes wrong in saying that that failure meant they wdnt be const.ized further down the line

o Some places did and some places didnt and theres no relation between success and failure and having seized or

not seized the Const. momento E.g.: Czech Repub and Hungary seem to have done fine

o E.g.: Slovakia hasnt done so well

o But doesnt have much to do w/ seizing of Const.l moment

BUT: his conceptualization is an important one: the difference between constituting power and constituted power is

important b/c were concerned w/ getting principled solutions that will stick in the long-run. And in order to do that, you haveto be in a certain cast of mind. In ordinary politics, youre looking out for short-term gain US politics as short-term interest-

group bargaining many people not paying attention and thats a good thing. But sometimes, there are these Constlmoments when it is both desirable for lots of people to get politically energized and, once they are, they think aboutpolitical decision-making differently: they think about the long-run. So you get better-quality decisions made in

Constl moments: i.e., likely to do a good job over the long-run. T: Maps onto constituting power and constituted power:ordinary politics is latter, constl moment is former.

Q for tom: Elster: crises provide the occasion for constl choice thats what shifts people from ordinary politics into constl

moments BUT: times of crisis are not very good times for making good choices.

***

17 Feb. 2009

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When creating an entirely new Const., you want the designers to be thinking in the longterm

o You want them to be behind a veil of ignorance so that they will make decisions that are good for the nation in the

long-run and not be entirely focused on what is good for them in the short-termo Sidenote: there is a diff. btw designing an entirely new Const. (Ackerman and Elsters subject) and modifying in

relatively small ways an existing Const. (discrete amendments) you want the latter to have a long-term kind ofattention, but the thought is that its different when youre focused on a particular problem.

e.g., theres now a reasonably seriously proposal to amend the US Consts provisions for describing themeans by which Senators who resign/retire/die in office are replaced: the considerations going into whether

that kind of amendment is well-designed are diff. from the ones going into whether an entirely new Const.is well-designed

o Ts inclination is to think that the discrete amendment (e.g. the Senatorial replacement amendment) can be done by

ordinary politicians for purely good government reasons.

Discrete amendments:

o Why are discrete amendments done?

Good government efforts

o Why do ord. politicians devote any time/effort to good govt reform?

Well, they rarely do. Its very rare for g. g. reforms to occur simply b/c theyre good reforms.

When they do occur, theres usually a lot of other stuff going on econ crisis, etc., takes up a lot of time and then a norm-entrepeneur can kind of slip this through, b/c no one really cares about it. But this is whyyou can only get one or two of these ideas.

o good e.g.: the Presidential disability Amendment (25th?) designed by experts, no large-scale consideration of it.

2nd Pres Bush twice signed doc.s turning over authority to Cheney when under general anaesthesia. sidenote: the 27th Amendment is an entirely different story.

When Madison proposed Bill of Rights, he proposed 12 Amendments first was about seats in

Congress (wdve been disaster: today, 1500-12000 seats in Congr today?), second was the 27th.

These first two amendments werent ratified by a sufficient number of states.

They just sat around for 200 years, until ~1980, a law student said: This wd be a good idea to get

adopted. And its still pending before legislatures.

Then by 1995 enough ratifications had accumulated, and Sec of State certified this, so became part

of Constitution.

Large-scale transformations:

o Why do people put aside their daily concerns and start thinking big?

o Ackerman: They do so only when there are conditions of crisis.

Otherwise, its not worth devoting any energy to a large-scale transformation.o Crisis conditions put people in the frame of mind to think about long-term redesign.

o Note: Ackerman also explicitly says the New Deal is a Constitutional Moment of the sort he cares about.

indeed, as a matter of intellectual history, the entire motivation for his theory is to constitutionalize the NewDeal to say, after the New Deal, we in the US have a diff Const from the one we had before it so that hewould be in a position to say that there was something unconstitutional about the Reagan revolution,which was a repudiation of the New Deal.

(hes got a very fancy scheme to show how you can distinguish between the New Deal Revolution and theReagan revolution T: doesnt work at all)

o These Const. moments are circumstances when the people of the nation are in an important sense mobilized by

political leaders (me: versus the leaders being moved to act by mobilized public) to confront an existing Conregime and successfully defeat it e.g. in Czech.ia Vaclav Havel, a pol. leader w/ no official status who served therole that presidents do in Ackermans scheme.

o Ackerman: weve had 3 Const. moments: Revolution/Framing, Civil War, New Deal T: I think theres a real case to be made that weve had 4 Reagan Rev. as fourth

(if you want to expand further: maybe Jacksonian America, maybe progressive era, maybe well one daysay Obama)

o Jacobson: not the most lucid writer. T: I take his arg. to be: in addition to a mobilized people, you have to have as

the outcome of the constitutional moment (for there to be a successful one) the mobilized people agreeing on anational self-definition.

in US, weve kept the apple (our idealized self-definition) constant for over 200 years, while the frame(the various Constitutions, through various con. moments, incl. imperfect first one) has changed

by contrast, in Israel, theyve never settled on a national self-definition that somehow makes sense of thedual commitments to Israel as a Jewish state and as a democratic state

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o [sidenote: at the end of Ackermans vol. 2: Its as if were a train moving into the future over a series of hills and

mountain ranges and the courts are in the caboose of the train looking backward and their job is to explain howthe Const. of 1789, 1868, New Deal Const. somehow tell the story of national continuity. Ack says hes going to dothis in Vol. 3, which hasnt appeared yet.

T: very skeptical that hell fulfill this promise.]o Note: FDR had as a possibility on the table the idea of amending Const. to get around obstructivist court FDR

explicitly rejected this.

T: not sure, but I think the ground was that the scope of the New Deal revolution that FDR envisioned wentbeyond what wd be addressed in the textualized version

ELSTER

o BUT: Elster says: crisis conditions are not really conducive to good decision-making:

First, Combination of panic and urgency.

Another part of the concern comes out in discussion toward end of chapter: compromise and principle.Conditions of crisis are ones in which people actually disagree a lot about what the relevant principlesshould be or agree on such a high level of abstraction that writing down their agreement wont addressthe issues causing the crisis.

Osejenski (sp?) is particularly upste about failure to resolve disagreements in the Polish context.

Also: In a crisis situation, youve got immediate problems that you need to solve, and youre not behind aveil of ignorance.

o What to do?

Elster makes very interesting observation: the Const. moment/constituent assembly idea is that the peoplemobilize, are going to act in a principled kind of way.

Elster says: the circ.s when youre actually doing Con. writing, there are two modes of discourse: arguingand bargaining.

Former when youre discussing principle. Latter when youre talking about things that you just

need to compromise about.

He then says: youll get a different mix of arguing and bargaining depending on whether youredeliberating in secret or in public.

The idea is that if your deliberations are conducted in secret, you can get much more bargaining

than if deliberations are conducted in public. In public, you have to pretend to or actually act onprinciple.

In private, you actually can cut a deal. And then you can go public with the deal and offer a

principled justification for it make something up dsnt have to be what you said behind closeddoors.

o

e.g. The Federalist Papers presented by us today as very astute discussion ofprinciples of Const. are just propaganda designed to sell to public a set of deals thatwere made behind closed doors. Particularly claim, it is said, re: perspective of Madison,who lost a lot of stuff that he thought was really important in Convention, then writes inFed. Papers as though Const. wereperfectly designed (even tho he thought this inprivate).

Final points:

o When you think about compromise v. principle or bargaining v. arguing, T./Jackson asked as one of their final

exam Qs: could you ever have a Const. of principle?

The answer to that is almost certainly no. There will have to be compromises made in a complicatedsociety.

So, to the extent that Osetinski (re: Poland) says there was too much compromise, not enough principle, heseems wrong.

On the other hand, some of the compromises you reach might undermine some of the principles that youhold.

e.g. 3/5 Compromise essential to get agreement on the Const.: if you wanted to have a Const,

this was a deal that you had to make: Southerners wdve walked away if they didnt get acompromise on the slavery issue even tho slavery is inconsistent w/ principles of Decl. of Indep. which even Southerners acknowledged at the time. (Tho by Civil War period some denied this.)

or: transitional justice questions. e.g. you have a military junta that has behaved brutally for ten

years, youre about to get rid of them, and they say: we still have enough guns to cause a lot oftrouble and if you want us to go, you have to promise us that you wont punish us for what wehave done.

o T: open Q whether theres any solution to this problem.

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o if you read the transitional justice material, it turns out (overstating the issue), the

amnesty/immunity kinds of deals work for a while 5 years, 10 years after the junta hasbeen thrown out, theres agitation for punishment, but punishment actually dsnt happen and then, at some point, the deal unravels (democracy has been established longenough, the principle of HR becomes embedded in the society also, the tension of notpunishing violators becomes unsustainable sometimes domestically, sometimes b/c ofinternational institutions who come in, etc.), so 20 years later you get efforts to punish e.g. just today in NYT, first day of a trial re: killing fields.

o so: interesting Q: if youre a military junta and know this history, what do you do?

o

Also: any way to get around the problems re: crisis? NY Const. has interesting provision: says that every 20 years, there must be a referendum on calling a

Const. convention so if the Const. seems gradually to be not working, youre guaranteed opportunity torethink the Const.

The last time NYerks voted favorably for such a convention was ~1969 and T thinks they

convened a convention, which proposed resolutions, which were then put on ballot and defeated.

Jefferson thought the Const. shd sunset after some number of years.

The problem is: crises, by definition, dont occur on a timetable.

Three things:

o 1. the consent and legitimacy point

The concern raised is that Murphys formulation looks ethnocentric, an Enlightenment formulation.

Murphy claims, and T thinks a lot of people have the intuition, that the legitimacy of a Const. (theauthority it has over us) depends on consent to the operation of the Const.

Be careful about unpacking this: the first point is putting aside some minor details when a Const. isadopted through some consensual mode, like the referendum, then its claim to authority over its subjectsmakes sense for those subjects who participated in the adoption process. (There are ways of dealing w/those who disagreed with it, even.) SO: Consent will legitimate for the founding generation.

The problem is: Why does Const. adopted generations ago have any claim on us today? This is theconcern motivating this discussion.

When T posed this Q to students in Singapore, they said that for contemporary Singaporeans, the Const.had legitimacy could make claims on them b/c it worked really well, was generating a lot of materialwell-being.

So one possibility is that a Const. makes claims to authority that we should honor if its working

reasonably well, whatever that means.

SO: Start out with consent as a source of legitimacy

1. Relatively easy for founding generation: explicit consent. But after then, what do you do?

2. T: Perhaps another basis for consent is that the system works reasonably well. (Singapore)

3. Murphy: The notion of consent requires that what is being consented to shows respect

for human dignity, moral autonomy. (me: doesnt work logically Kantian nonsense.) (So theSingaporeans arent really talking about consent in Murphys terms. They might say, did say, w/cynical overtone: we have notion ofgroup autonomy.) (Murphys ideas tied to Enlightenment-type ideas.)

o me: looking back at Murphy: hes placing a limiton context in which consent can

legitimate a Const.: if a people consents to a Const. that doesnt respect human dignity,the Const. still isnt legitimate only consent + respect for human dignity works theyhave to be moving in tandem.

o me: Singapore really calls into question this idea: they can vote for the opposition

party its just that the opposition party loses, gets 20-30% all the time. (The leadership

justifies everything through attention togroup autonomy: there are a variety of distinctgroups, and we want to be attentive to their terms.) And the Internet isntso restricted.Print media have to have govt on the board. Also, areas supporting opposition get lessgovt support. And when Chinese candidate posed threat, they used libel law to bankrupthim, bankrupt people are ineligible for office, he had to go into exile. Leading oppositionpolitician was BJB sued, bankrupt, waited out ineligibility, ran again, almost bankrupt,etc.

o 2. Holmes/Sunsteins argument re: ease of amendments (b/c this is relevant to the issue of designing courts)

o 3. what people think about Jacobsohns argument

Mon, well turn to issues of Constitutional entrenchment return to #2, 3 above

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***

23 Feb. 2009

Holmes and Sunstein: what Const.s shd say about the amendment process

o note that H & S talk about a lot of other things as well

o a fair amount of what they say on the other issues is either wrong or overstated, less interesting (and a cert. amount

of internal tension)

o but what they say about the amendment process good

T: The most interesting part of their arg.s: consider in C & E Euro a nation that has had a significant and reasonably longperiod of governance by a dictatorship or strongly authoritarian regime, which has now experienced a transition todemocracy. What is the political character of the people of that country, and whats the relationship btw that char andinstitutional design, esp. re: amendment?

o Could have relatively easy or relatively difficult amendment process

o What the Const. does (as S said in earlier reading) is take some issues off the table to settle some aspects of the

nations governanceo If we then imagine Const. as small carve-out from realm of Politics:

o Their political char is that theyre not experienced in self-govt, but they need to be: so that you have to set up your

system so that people will engage in ordinary politics in a way that they were barred from doing under theauthoritarian regime. This means the permanent domain of the Const. settlement should be relatively small.

o SO: You should have a relatively easy amendment process.

o Recap: A difficult-to-amend Constitution will perpetuate the attitudes toward politics that were encouraged

or instilled during the authoritarian period the attitude that there wasnt much you could do aboutpolitically significant matters

under auth. regime, it was b/c rulers wd do it for you/to you

w/ difficult-to-amend Const, its b/c the Const has taken it out of your handso THEN they retract a whole bunch of that and say: you shouldnt make basic property rights etc. etc. easily

amendable

T: So what is our response to this obvious tension?

o One objection: they arent sufficiently comparativist (you can see this in a lot of his stuff on non-US subjects) for

Const. provisions to be meaningful, he says, they have to bejudicially enforced. BUT: T: thats clearly not true ofaspirational provisions. (Thats the whole point of their being aspirational.)

o T thinks the sensible part of the argument is the first part; the second part is weaker unless we add core IHL

guarantees with a margin of appreciation explanation of these terms being:

T: Sidenote: There might be an important intersection here btw domestic Con Law (what were concerned with) and Intl

HR law. Re: latter, you might take the position that IHL provides a baseline of guarantees that must be recognized and thatthat baseline is reasonably small.

o Note: the margin of appreciation captures this idea: youve got to have the fundamental institutions of electoral

democracy. But you can also have whats called institutions of militant democracy, meaning (in this context) itsokay to ban from the ballot parties whose programs, if adopted, would be fundamentally democratic. Youdont have to do this. But if you want to, you can. Well give you a margin of appreciation depending on yourlocal circumstances. So (in different language, you might say) in Israel, political parties have been banned from theballot on the ground that their programs are inconsistent w/ Israels dual commitment to being Jewish anddemocratic state. (So anti-Zionist have been banned; and anti-Arab parties have been banned.) (v. in US it wd beinconceivable to ban a party on similar grounds and the reason is, the circumstances are different we give a lowmargin of appreciation)

T: It may be more important to guarantee political stability early on, so that people will know the benefits of peace. A

compromise that was unstable at the beginning might become stable over time at which point, you can place it back incontention. At that point, tweaking really will be tweaking, wont call the whole thing into question.

So: the model would be: early on, you must have a fairly large constitutionalized area, fixed and later on, once youve got

constitutional citizens, its okay to shrink that area, allow more contestation.

Note: student: a poss arg in favor of H / S approach: judges may not be trusted, so the less control you give them early on, the

better

Sidenote: what are the mechanisms of Con change?

o Con. amendment

o express alteration of the text pursuant to some relatively formalized procedure

o Ackermans New Deal as a con moment (a con transformation that is not memorialized in the Con text)

o judicial interpretation (or reinterpretation) of the text

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o Con workarounds (e.g. the Hillary Clinton problem you use one part of the text to overcome another part of it,

and no one is bothered)

Sidenote: over the past generation (since 1980, say), there have been 2 great constitutional innovations:

o 1. the new commonwealth form

o 2. not widely used, but incredibly interesting and smart innovation: to have a domestic constitutional court w/ non-

domestic judges on it (Bosnia-Herzegovina)

THIS WEEKs ASSIG:CONSTITUTIONAL ENTRENCHMENT

3 sections to the chapter

Constitutionalism w/o a Con GB:

o thats the classical British system tho, over the last two decades, there have been substantial changes in the Brit

constitutional system, to the point where the classical model may not fit GB anymoreo the clasiscal model was: Parliamentary Supremacy (= in the end, Parl. has the legal power to do anything the

present-day majority wants to do)o BUT: T: its worth noting here that there are ways of injecting constituitonalist concerns into a system of

Parliamentary supremacy:

you can say, for example, that the court will not interpret an arguably ambiguous statute to authorizesubstantively questionable action;

or you can say: if an executive authority engages in a substantively questionable action, that is lawful onlyif its done pursuant to express legislation.

o SO: even in a system of Parl.y supremacy, there are ways of getting Con.ism into the system

o BUT: if you get it into the system by these stat. interp. modes, or the ultra vires (executive authority) approachParl. can then squeeze it out by making the statute clear or expressly authorizing the Exec. official to do thesequestionable activities

o Illustrations:

the statutory interpration approach: the canon of stat interp that says: yo ushd construe statutes to avoidcon qs

the ultra vires approach (what Brit con law was until relatively recent) (a Brit con law text untilrecently wdve been entirely about ultra vires): Ts favorite example of this approach comes fromNetherlands Dutch Con has a full-scale B of Rts, and also has a provision saying: none of the provisionsof this Const. can be enforced in any Dutch court express denial of judicial review (ftnt: says treaties canbe enforced by courts Euro HR treaty thus means they can already do a lot). Then case: somebodysuspected of transporting drugs, hes locked up on suspicion that hes ingested a balloon and placed under24-h

Documents

Tushnet ConComp 2008 Outline H