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“States of the Same Nature”: Bounded Variation in Subfederal Constitutionalism

Jacob T. Levy

in New Frontiers of State Constitutional Law: Dual Enforcement of Norms

This chapter provides an account of variation in constitutional values and choices within a federation, grounding it in a conception of federalism as a pragmatic alternative to competing conceptions ... More

This chapter provides an account of variation in constitutional values and choices within a federation, grounding it in a conception of federalism as a pragmatic alternative to competing conceptions of the nature of constitutional choice. In what the chapter calls the moral-realist tradition, constitutional similarity ought to be the norm because the purpose of a constitution is to operationalize principles of justice that are at bottom universal. In contrast, in the democratic-positivist tradition, constitutional divergence is unremarkable because constitutions embody little more than the contingent choices of one political association or another. Federalism charts a middle course. By granting some autonomy to subnational units, federalism permits contingent choice and preference satisfaction, yet by subordinating subnational choices to national ones, it sets collectively determined limits on the permissible range of those choices—a kind of “localized universalism”, one might say, that results in a so-called “bounded variation”. It is argued that the benefits of such an arrangement include experimentation without instability, diversity without alienation, and the institutionalization of feasible change—although this need not always imply “progress” of a moral or any other kind.Less

Human Dignity: The Constitutional Value and the Constitutional Right

Aharon Barak

in Understanding Human Dignity

This chapter draws the basic distinction between human dignity as a constitutional value and human dignity as a constitutional right. It describes the role and meaning of human dignity as an express ... More

This chapter draws the basic distinction between human dignity as a constitutional value and human dignity as a constitutional right. It describes the role and meaning of human dignity as an express or implied constitutional value. The chapter then focuses on the scope of the constitutional right to human dignity and the problem of partial overlap between the right to human dignity and other independent constitutional rights.Less

Identity, Freedom, and Constitutional Constraint

Thomas P. Crocker

in Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism

This chapter reviews the commitment to constitutional values as a constitutive feature of political identity in American constitutionalism. It argues that a person has the ability to choose its own ... More

This chapter reviews the commitment to constitutional values as a constitutive feature of political identity in American constitutionalism. It argues that a person has the ability to choose its own character as well as the actions that constitute that character. It looks into Hannah Arendt's suggestion that even if the “affairs of men” are “ever-changing,” some can change substantially without affecting the meaning of the whole while others are more central to the entire enterprise. The chapter talks about the end of the Reconstruction Amendments that altered the very fabric of American constitutionalism and the identity of the American people due to the reinstatement of a constitutional basis for slavery. It also highlights the long history of constitutional understandings that has woven a fabric of rights protections in both domestic and international law that stand against the use of cruelty as a means of criminal procedure.Less

Substantive Pluralism

Jaklic Klemen

in Constitutional Pluralism in the EU

Chapter 3 moves to the analytical presentation of Joseph Weiler’s version of constitutional pluralism. In stark contrast to epistemic pluralism, this version seeks to build a particular external ... More

Chapter 3 moves to the analytical presentation of Joseph Weiler’s version of constitutional pluralism. In stark contrast to epistemic pluralism, this version seeks to build a particular external substantive balance between the two confronting constitutional identities, the nation-state and the European one. The substantive balance is emphatically about the content (the what) of the constitutional discourse, but is such that it claims not to unduly emphasize one substantive identity over the other. This is what is meant by pluralism. In contrast to epistemic pluralism, this necessarily implies a great degree of commensurability between the authority and knowledge claims coming from the distinct constitutional orders in Europe. Explicating this approach, Weiler’s multiple different individual contributions are pulled together in a particular way so as to cohere his concrete conception of pluralism for the first time. The chapter ends by identifying a cluster of different ultimate values underpinning such an approach.Less

Why Amendment Rules?

Richard Albert

in Constitutional Amendments: Making, Breaking, and Changing Constitutions

Virtually all constitutions codify amendment rules. But why? What are the uses and purposes of constitutional amendment rules? Amendment rules of course create a legal process for reformers to alter ... More

Virtually all constitutions codify amendment rules. But why? What are the uses and purposes of constitutional amendment rules? Amendment rules of course create a legal process for reformers to alter the constitution. But amendment rules serve important purposes even if the constitution is never amended at all because they have essential uses beyond the obvious one of textual alteration. Amendment rules have three categories of uses: formal, functional, and symbolic. Their formal uses include repairing imperfections, distinguishing constitutional from ordinary law, entrenching rules against easy repeal or revision, and establishing a predictable procedure for constitutional change. Their functional uses include checking the court, promoting democracy, heightening public awareness, pacifying change, and managing difference. Symbolically, amendment rules can be used to express constitutional values. This chapter explains all of these many uses of amendment rules and illustrates each of them with examples drawn from constitutions around the world. This chapter also interrogates the symbolic uses of amendment rules: How can we know whether the values expressed in constitutional amendment rules reflect authentic political commitments? This chapter explains with reference to the German Basic Law that it is possible to evaluate the authenticity of the values in amendment rules by investigating the design of amendment rules and their subsequent interpretation. This chapter considers constitutions from Afghanistan, Albania, Algeria, Bosnia and Herzegovina, the Central African Republic, Chad, China, Cuba, Ecuador, Germany, Kazakhstan, Kiribati, Saint Lucia, South Africa, Spain, the Russian Federation, the Soviet Union, Ukraine, the United States, and Yugoslavia.Less

Interpretive and Participative Pluralism

Jaklic Klemen

in Constitutional Pluralism in the EU

Chapter 4 focuses on Miguel Maduro’s version of pluralism. This has two interconnected dimensions. The first is “interpretive pluralism”: a specific proposal for a discursive framework that—similarly ... More

Chapter 4 focuses on Miguel Maduro’s version of pluralism. This has two interconnected dimensions. The first is “interpretive pluralism”: a specific proposal for a discursive framework that—similarly to epistemic pluralism—aspires to retain as much space as possible for self-determinations by different constitutional identities themselves. The second is “participative pluralism.” This represents the ultimate normative goal of Maduro’s conception, which is enhancement of participation and representation. It is believed that the use of the pluralist interpretive formulas (“interpretive pluralism”) in constitutional interpretation across Europe will lead to the enhancement of participation/representation as envisioned by participative pluralism. Both these key dimensions are first identified in different parts of Maduro’s writings and then brought together in an attempt at reconciliation, presenting a more complete picture of his conception of pluralism. Like Walker’s, this conception primarily appears within the discourse of the how. The ultimate value behind the conception is identified.Less

Stability, Dynamism, and Other Values

in The Language of Statutes: Laws and Their Interpretation

This chapter examines what values other than legislative primacy contribute to the interpretation of statutes. It analyzes the competing values of stability and responsiveness to changing ... More

This chapter examines what values other than legislative primacy contribute to the interpretation of statutes. It analyzes the competing values of stability and responsiveness to changing circumstances, coherence, constitutional values, fair notice, support for law enforcement and the personal values of judges. This chapter examines several cases and suggests that courts strongly favor legislative primacy as a value, although they disagree over how best to be faithful to the lawmakers.Less

Setting the Scene

Jean Thomas

in Public Rights, Private Relations

In the US the argument that private actors ought sometimes to be held responsible for individuals’ public law rights has been made since the earliest rights adjudication. In the main, it has ... More

In the US the argument that private actors ought sometimes to be held responsible for individuals’ public law rights has been made since the earliest rights adjudication. In the main, it has consistently failed. The reason for this failure can be understood as partly related to the method of argument employed. This chapter considers the ways in which the problem has so far been addressed, both theoretically and in practice, and outlines the limitations of existing mechanisms for enforcing public rights against private actors. It shows how approaches that extend the protections of public rights to the private sphere through ‘horizontalization’ retain the state as the central duty–bearer and thus fail to address the central problem of recognizing and limiting direct private obligations. It argues that these approaches are therefore overly reliant on judicial discretion, leading to uncertainty and judicial deference to existing private law rules.Less

A Living Truth

Robert A. Burt

Frank Iacobucci (ed.)

in Justice and Empathy: Toward a Constitutional Ideal

This chapter discusses the concept of law and the legal and social role of the courts—especially the U.S. Supreme Court—as a moral and social agent for change, particularly in protecting the minority ... More

This chapter discusses the concept of law and the legal and social role of the courts—especially the U.S. Supreme Court—as a moral and social agent for change, particularly in protecting the minority or the disadvantaged in society as opposed to favoring the strong or majority. This raises questions about who is the majority or minority or the stronger or the weaker, and who decides the answers to these questions. The chapter shows how restricting constitutional interpretation to the specific meanings of the original language is too narrow and, given the majestic generalities of that language, even conflicts with the original authors' intentions. But then again, freeing judges from objectively determinative standards excessively opens them to confusing personal preferences with enduring constitutional values.Less

Dialogic Constitutionalism in Defective Democracies

Roberto Gargarella

in Constitutionalism: Old Dilemmas, New Insights

This chapter studies the theory and practice of constitutional dialogue, in the context of defective democracies. Within the framework of a deliberative democracy, it argues for a dialogic approach ... More

This chapter studies the theory and practice of constitutional dialogue, in the context of defective democracies. Within the framework of a deliberative democracy, it argues for a dialogic approach to constitutionalism where the different branches of government and the people at large engage in a conversation with the aim of interpreting the actual implications of the fundamental constitutional values. Such conversation about the Constitution includes basic considerations about who discusses, about what they discuss, how they do it, and why they do it. The chapter then presents some of the problems that seem to be affecting constitutional democracies. It also reflects on the tasks that a committed judiciary could assume, in order to confront the existing social and institutional difficulties. Finally, the chapter looks at different cases related to actions and omissions by the Colombian Constitutional Court.Less