Abstract How does judicial federalism affect an apex court’s articulation of constitutional rights? Despite the growth of scholarship on comparative judicial review, federalism, and rights, comparative judicial federalism is underexplored. Building on an emerging literature, this article tentatively suggests that the authoritative declaration of constitutional rights may vary with a country’s particular species of judicial federalism. It first develops a qualitative framework for comparative judicial federalism, that is, the relationship between local (state) and central (federal) courts. The framework is structured around judicial federalism’s three dimensions: institutional, jurisdictional, and jurisprudential. After justifying these three dimensions, the article deploys them to compare Australia and the United States. It posits that in one context—federal free-speech limits on the common law—Australia’s purportedly modest implied freedom of political communication could resemble the powerful Free Speech Clause of the First Amendment. The relative degree of integration of central and local courts may affect the scope of the federal free-expression norm as articulated by the apex court.
{"title":"Comparative judicial federalism","authors":"Jeffrey Steven Gordon","doi":"10.1093/icon/moad081","DOIUrl":"https://doi.org/10.1093/icon/moad081","url":null,"abstract":"Abstract How does judicial federalism affect an apex court’s articulation of constitutional rights? Despite the growth of scholarship on comparative judicial review, federalism, and rights, comparative judicial federalism is underexplored. Building on an emerging literature, this article tentatively suggests that the authoritative declaration of constitutional rights may vary with a country’s particular species of judicial federalism. It first develops a qualitative framework for comparative judicial federalism, that is, the relationship between local (state) and central (federal) courts. The framework is structured around judicial federalism’s three dimensions: institutional, jurisdictional, and jurisprudential. After justifying these three dimensions, the article deploys them to compare Australia and the United States. It posits that in one context—federal free-speech limits on the common law—Australia’s purportedly modest implied freedom of political communication could resemble the powerful Free Speech Clause of the First Amendment. The relative degree of integration of central and local courts may affect the scope of the federal free-expression norm as articulated by the apex court.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135540531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Supermajorities in judicial review are present in several countries, including the United States (at the state level), Mexico, Peru, the Czech Republic, Chile, and South Korea. Despite their prevalence, the theoretical legitimacy of supermajorities has been a topic of intense debate since the early twenty-first century. A notable gap exists between this theoretical discourse and empirical research that examines the supermajority models in practice. This article endeavors to bridge this gap. Focusing on two important concerns raised in comparative scholarship—namely that supermajorities might enable political branches to control the court through select appointments, and they could potentially paralyze constitutional courts—this article offers a nuanced examination of the Mexican scenario. It argues that specific mechanisms governing judicial appointments, such as staggered terms and pluralistic appointments, can effectively mitigate the risk of court control in supermajority settings. Furthermore, a thorough assessment of an ad hoc dataset on decisions in which the supermajority was applicable suggests that these majorities do not paralyze the court.
{"title":"Control and paralysis? A context-sensitive analysis of objections to supermajorities in constitutional adjudication","authors":"Mauro Arturo Rivera León","doi":"10.1093/icon/moad074","DOIUrl":"https://doi.org/10.1093/icon/moad074","url":null,"abstract":"Abstract Supermajorities in judicial review are present in several countries, including the United States (at the state level), Mexico, Peru, the Czech Republic, Chile, and South Korea. Despite their prevalence, the theoretical legitimacy of supermajorities has been a topic of intense debate since the early twenty-first century. A notable gap exists between this theoretical discourse and empirical research that examines the supermajority models in practice. This article endeavors to bridge this gap. Focusing on two important concerns raised in comparative scholarship—namely that supermajorities might enable political branches to control the court through select appointments, and they could potentially paralyze constitutional courts—this article offers a nuanced examination of the Mexican scenario. It argues that specific mechanisms governing judicial appointments, such as staggered terms and pluralistic appointments, can effectively mitigate the risk of court control in supermajority settings. Furthermore, a thorough assessment of an ad hoc dataset on decisions in which the supermajority was applicable suggests that these majorities do not paralyze the court.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135975787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In his Foreword, Sergio Verdugo presents Schmitt’s account of constituent power as the conventional understanding of this concept. At the same time, he shows that Schmitt’s views are contested and hardly accepted as a matter of convention. Verdugo’s critiques of constituent power are leveled mainly against Schmitt’s (“conventional”) understanding of the concept. If Schmitt’s account is relaxed, various criticisms of constituent power seem overstated. We have good reasons to abandon Schmitt’s conception of constituent power as unlimited and permanently active. Several flaws of Schmitt’s model of constituent power have to do with its failure to account for the contribution of constituent power to world-building. A restless and omnipotent constituent power cannot contribute much to the construction of a public world. Schmitt’s unruly constituent power entraps society in a state of permanent worldlessnes (Arendt) or communitas (Turner). In order to allow for the reproduction of the public world, constituent power has to be limited and discontinuous. A theory of the constitution that is based on Kantorowicz’s account of the corporate body politic sheds light on the legal construction of public space and public time.
{"title":"Constituent power: From Schmitt to Kantorowicz—Afterword to the Foreword by Sergio Verdugo","authors":"Lior Barshack","doi":"10.1093/icon/moad077","DOIUrl":"https://doi.org/10.1093/icon/moad077","url":null,"abstract":"Abstract In his Foreword, Sergio Verdugo presents Schmitt’s account of constituent power as the conventional understanding of this concept. At the same time, he shows that Schmitt’s views are contested and hardly accepted as a matter of convention. Verdugo’s critiques of constituent power are leveled mainly against Schmitt’s (“conventional”) understanding of the concept. If Schmitt’s account is relaxed, various criticisms of constituent power seem overstated. We have good reasons to abandon Schmitt’s conception of constituent power as unlimited and permanently active. Several flaws of Schmitt’s model of constituent power have to do with its failure to account for the contribution of constituent power to world-building. A restless and omnipotent constituent power cannot contribute much to the construction of a public world. Schmitt’s unruly constituent power entraps society in a state of permanent worldlessnes (Arendt) or communitas (Turner). In order to allow for the reproduction of the public world, constituent power has to be limited and discontinuous. A theory of the constitution that is based on Kantorowicz’s account of the corporate body politic sheds light on the legal construction of public space and public time.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135976126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contemporary constitutional theorists sometimes use the phrase “the constituent power of the people” in a way that is, on closer examination, ambiguous. It could mean that the people is the bearer of constituent power, that the people exercises constituent power, or both. This article examines this pivotal, yet rarely explicitly thematized, distinction internal to the concept of constituent power and considers its downstream implications for constitutional theory. The proposition that the people is the bearer of constituent power, I argue, is best read narrowly as a claim about the proper subject of attribution for major constitutional change. The proposition that the people exercises constituent power, however, is best read either as (i) a claim about the capacity of citizens to effect constitutional change through collective deliberation, or (ii) shorthand for the claim that representatives should always engage in processes of constitutional change on behalf of citizens. If these readings are true, the article concludes, then this has important consequences for the theory and practice of constituent power and for its relationship with political representation.
{"title":"Can the people exercise constituent power?","authors":"George Duke","doi":"10.1093/icon/moad067","DOIUrl":"https://doi.org/10.1093/icon/moad067","url":null,"abstract":"\u0000 Contemporary constitutional theorists sometimes use the phrase “the constituent power of the people” in a way that is, on closer examination, ambiguous. It could mean that the people is the bearer of constituent power, that the people exercises constituent power, or both. This article examines this pivotal, yet rarely explicitly thematized, distinction internal to the concept of constituent power and considers its downstream implications for constitutional theory. The proposition that the people is the bearer of constituent power, I argue, is best read narrowly as a claim about the proper subject of attribution for major constitutional change. The proposition that the people exercises constituent power, however, is best read either as (i) a claim about the capacity of citizens to effect constitutional change through collective deliberation, or (ii) shorthand for the claim that representatives should always engage in processes of constitutional change on behalf of citizens. If these readings are true, the article concludes, then this has important consequences for the theory and practice of constituent power and for its relationship with political representation.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41588542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article rethinks the mutation of the internal market, charting its metamorphosis from a free trade area to a maze of common policies. It examines the case law of the European Court of Justice from a novel, structural perspective which uses community detection techniques to shed new light on this amply theorized process. The analysis reveals an irreversible shift in the method of integration, from a de-regulatory removal of national rules obstructing free movement (liberalization) to a re-regulatory adoption of common rules and standards promoting free movement (harmonization). The shift, which occurred between 2007 and 2010, signals a new rationale of integration and a reprioritization of the European Union’s economic and non-economic objectives. Finally, the article questions whether said shift calls for a new authorization of Europe to regulate.
{"title":"Route 66: Mutations of the internal market explored through the prism of citation networks","authors":"U. Šadl, Lucía López Zurita, S. Piccolo","doi":"10.1093/icon/moad063","DOIUrl":"https://doi.org/10.1093/icon/moad063","url":null,"abstract":"\u0000 The article rethinks the mutation of the internal market, charting its metamorphosis from a free trade area to a maze of common policies. It examines the case law of the European Court of Justice from a novel, structural perspective which uses community detection techniques to shed new light on this amply theorized process. The analysis reveals an irreversible shift in the method of integration, from a de-regulatory removal of national rules obstructing free movement (liberalization) to a re-regulatory adoption of common rules and standards promoting free movement (harmonization). The shift, which occurred between 2007 and 2010, signals a new rationale of integration and a reprioritization of the European Union’s economic and non-economic objectives. Finally, the article questions whether said shift calls for a new authorization of Europe to regulate.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42121969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past fifty years, domestic regulators have turned to standards developed by private organizations as a means of complying with international law commitments to eliminate barriers to trade. What impact does this phenomenon of parallel incorporation, in which regulators in different countries incorporate the same private standards, have on domestic administrative law and public law? Through a case study of US and Australian regulators’ adoption of the same standards in aviation, the article exposes how parallel incorporation exacerbates existing accountability deficits of administration, contributes to the hollowing out of public capacity to review these incorporations, defies conventional understandings of delegation, and breaches basic understanding of rulemaking processes in both the United States and Australia. Using conventional administrative processes to implement solutions compelled by international commitments strains and transforms these processes. In this context, trade law imperatives result in accommodations from domestic public law not the reverse.
{"title":"Parallel incorporation and public law","authors":"A. Edgar, Kevin M. Stack","doi":"10.1093/icon/moad064","DOIUrl":"https://doi.org/10.1093/icon/moad064","url":null,"abstract":"\u0000 Over the past fifty years, domestic regulators have turned to standards developed by private organizations as a means of complying with international law commitments to eliminate barriers to trade. What impact does this phenomenon of parallel incorporation, in which regulators in different countries incorporate the same private standards, have on domestic administrative law and public law? Through a case study of US and Australian regulators’ adoption of the same standards in aviation, the article exposes how parallel incorporation exacerbates existing accountability deficits of administration, contributes to the hollowing out of public capacity to review these incorporations, defies conventional understandings of delegation, and breaches basic understanding of rulemaking processes in both the United States and Australia. Using conventional administrative processes to implement solutions compelled by international commitments strains and transforms these processes. In this context, trade law imperatives result in accommodations from domestic public law not the reverse.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46130042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Naming and (mis)informing in academic publications","authors":"Ming‐Sung Kuo","doi":"10.1093/icon/moad062","DOIUrl":"https://doi.org/10.1093/icon/moad062","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43359625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The political economy of effective judicial remedies","authors":"G. Mukherjee","doi":"10.1093/icon/moad061","DOIUrl":"https://doi.org/10.1093/icon/moad061","url":null,"abstract":"","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46899518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This reply offers some critical reflections that tie into the assumptions of Eva Brem’s interesting study of the risk of national authorities’ misunderstandings of the margin of appreciation conceded by the European Court of Human Rights (ECtHR). Taking on board a cooperative conception of the principle of subsidiarity, this reply first questions the adequacy of the distinction between a systemic and a normative dimension of the margin of appreciation as the proper basis for assessing the risk of domestic misunderstanding of the margin of appreciation. Next, it raises some objections to the analysis that Brems makes of the ECtHR judgment in S.A.S. v. France, particularly her application of the normative dimension of the margin of appreciation to this example of possible misunderstanding. The reply argues that Brems’s assumption that the ECtHR conducted a procedural rationality review of the French burqa ban minimizes Strasbourg’s own contribution to the risk that other states, in similar cases, may misunderstand how human rights are to be applied to avoid misinterpreting their national margin of appreciation.
{"title":"Who misunderstands the margin of appreciation? A reply to Eva Brems","authors":"Marisa Iglesias Vila","doi":"10.1093/icon/moad066","DOIUrl":"https://doi.org/10.1093/icon/moad066","url":null,"abstract":"Abstract This reply offers some critical reflections that tie into the assumptions of Eva Brem’s interesting study of the risk of national authorities’ misunderstandings of the margin of appreciation conceded by the European Court of Human Rights (ECtHR). Taking on board a cooperative conception of the principle of subsidiarity, this reply first questions the adequacy of the distinction between a systemic and a normative dimension of the margin of appreciation as the proper basis for assessing the risk of domestic misunderstanding of the margin of appreciation. Next, it raises some objections to the analysis that Brems makes of the ECtHR judgment in S.A.S. v. France, particularly her application of the normative dimension of the margin of appreciation to this example of possible misunderstanding. The reply argues that Brems’s assumption that the ECtHR conducted a procedural rationality review of the French burqa ban minimizes Strasbourg’s own contribution to the risk that other states, in similar cases, may misunderstand how human rights are to be applied to avoid misinterpreting their national margin of appreciation.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135804661","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Anna Wallerman Ghavanini, Gunnar Grendstad, Johan Karlsson Schaffer
Abstract Scandinavian supreme courts have been described as deferential to the elected branches of government and reluctant to exercise their limited review powers. However, in recent years, these courts have increasingly decided cases impacting public policy making. Yet we lack comprehensive, comparative knowledge about the legal rules and judicial practices that govern the policymaking role of courts in Denmark, Norway, and Sweden. Addressing this gap, this article develops an analytical framework and systematically compares the evolving laws, rules, and practices that regulate the supreme courts’ constitutional review powers and court administration, the appointment and tenure of judges, access to the supreme courts, and their decision-making procedures over the last fifty years. The comparison reveals notable institutional differences across these judiciaries and finds that judicial expansion in Scandinavia has coincided with institutional changes that enhance judicial autonomy. This suggests that consequential reforms of domestic origin may have played a larger part in this development than previously appreciated.
{"title":"Institutions that define the policymaking role of courts: A comparative analysis of the supreme courts of Scandinavia","authors":"Anna Wallerman Ghavanini, Gunnar Grendstad, Johan Karlsson Schaffer","doi":"10.1093/icon/moad068","DOIUrl":"https://doi.org/10.1093/icon/moad068","url":null,"abstract":"Abstract Scandinavian supreme courts have been described as deferential to the elected branches of government and reluctant to exercise their limited review powers. However, in recent years, these courts have increasingly decided cases impacting public policy making. Yet we lack comprehensive, comparative knowledge about the legal rules and judicial practices that govern the policymaking role of courts in Denmark, Norway, and Sweden. Addressing this gap, this article develops an analytical framework and systematically compares the evolving laws, rules, and practices that regulate the supreme courts’ constitutional review powers and court administration, the appointment and tenure of judges, access to the supreme courts, and their decision-making procedures over the last fifty years. The comparison reveals notable institutional differences across these judiciaries and finds that judicial expansion in Scandinavia has coincided with institutional changes that enhance judicial autonomy. This suggests that consequential reforms of domestic origin may have played a larger part in this development than previously appreciated.","PeriodicalId":51599,"journal":{"name":"Icon-International Journal of Constitutional Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135761735","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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