Subsidiarity as a Constitutional Principle in Environmental Policy

The principle of subsidiarity has become more widely known with its prominent adoption in the Maastricht Treaty. The principle is, however, deeply embedded in the history of political economy, notably in the continental European tradition. In this tradition, it has the status of a principle in constitutional political economy, i.e. it is a principle that affects policy design as opposed to policy choice. This article emphasizes the constitutional political economy aspect of the principle and illustrates its usefulness with respect to environmental policy design.public economics ;

Dignity and Social Meaning: \u3ci\u3eObergefell\u3c/i\u3e, \u3ci\u3eWindsor\u3c/i\u3e, and \u3ci\u3eLawrence\u3c/i\u3e as Constitutional Dialogue

The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing so, it draws on the scholarly literatures on dialogic judicial review and the role of social meaning in constitutional law. It illuminates how the Supreme Court interprets democratic preferences and constructs social meaning in order to apply fundamental constitutional norms to emerging legal claims. Contrary to the speculations of some commentators, “dignity” in these cases did not operate as some new form of constitutional right. Rather, the identification and protection of dignitary interests served as the unifying principle for a process, unfolding in three cases over thirteen years, through which constitutional law was brought into alignment with evolving public attitudes and policy preferences. The dignity decisions should be understood as majoritarian, not as acts of judicial will. They were broadly accepted because the Court’s insights about the status of gays and lesbians in American society were consistent with dramatic and long-term changes in cultural and public attitudes. As culture and attitudes evolved, so did the social meaning of anti-gay laws. Sodomy laws and marriage restrictions, once accepted as presumptively constitutional protections of tradition and public morality, increasingly came to be understood as impositions of stigma and humiliation—the kind of expressive harms that the U.S. Constitution forbids

Finding Freedom for the Thoughts We Hate

In his dissenting opinion in United States v. Schwimmer (1929), Supreme Court Justice Oliver Wendell Holmes, Jr., famously defended tolerance as an indispensable constitutional value. He wrote: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.” Yet accepting that the Constitution protects the thought that we hate can be difficult, even during the best of times. And these are far from the best of times. Nuclear brinksmanship has returned. Extreme partisanship prevails. Equality and religious liberty are cast as antagonists. Overt racism and bigotry are resurgent. In unsettled periods such as these, many see a constitutional commitment to freedom for the thought that we hate as just another means of maintaining an unacceptable status quo. Why should we tolerate offensive speech that hurts and divides – particularly within broadly inclusive spaces such as public universities? Why doesn’t the constitutional promise of equality permit us to exclude from public debate views that dehumanize and seek to revive the sins of the past

Integrity and Universality: A Comment on Dworkin\u27s \u3ci\u3eFreedom\u27s Law\u3c/i\u3e

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or her interests is entitled -- morally and legally -- to a reasoned decision illustrating why moral principles held constitutionally dispositive in earlier cases regarding similarly situated groups should not be equally dispositive for him or her. When done well, the result of this method is what Dworkin has called an integrity of principle, which, in turn, is a necessary, albeit not sufficient, condition for the moral justification of the constraints of constitutional law in a democratic state. Stated differently, if constitutional law is to be a part of a morally justified form of democratic self-governance, then the moral principles at its core must be applied even-handedly, and they must be applied even-handedly no matter how difficult, inexpedient, inefficient, or simply politically unpopular it may be, from time to time, to do so. Finally, commitment to such a view defines membership in the party of principle, intended as a contrast to the membership of the party of history, who defends and locates rights not by reference to general principles even-handedly applied, but rather, by reference to whether the argued right respects distinctions honed and honored by tradition. In these comments, I want first to suggest a non-relativist argument for the necessity of integrity to constitutionalism, intended, frankly, to resolve the above noted tension, and to do so by identifying the grounds for integrity and principle in neither the interpreted constitution nor in liberalism, but in a substantive value that is deeper and broader than both, and hence both informs and constrains both. The constraint of integrity, I will argue, arises not from the sail of constitutional precedent itself, which goes wherever the wind blows it, nor from liberalism per se, but from a source external to both, which accordingly constrains the direction which constitutional authority might take. The argument that I will suggest is by no means inconsistent with Dworkin\u27s arguments and indeed is strongly suggested in much of his earlier writing, particularly Law\u27s Empire. In the second part of my comments, I will suggest some limitations on this conception of integrity. Finally, I will offer a friendly amendment to Dworkin\u27s account of integrity

Proportionality in Constitutional and Human Rights Interpretation

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer to such objections and to reject them, as well as to reinforce the importance of this development, the author: first, revisits the constitution of principles and of the principle of proportionality, which per definitio contradicts each one of this objections; and, then, restates the constitution of the principle of proportionality as a principle of principles not only in constitutional and human rights interpretation but also in legislation, including constitutional reformation, and adjudication

The Authoritarian Impulse in Constitutional Law

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the principle of judicial exclusivity in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we should all engage in constitutional debate. We should stop relying on the courts to shoulder the burden of resolving the constitutional consequences of our political decisions. According to this argument, our methods of resolving moral issues in this country are deeply flawed. The flaw is that we have delegated to the courts, rather than kept for ourselves, the moral responsibility for our decisions. By protecting, cherishing, and relying upon judicial review, we have essentially alienated our moral public lives to the courts. I agree with Brest that our methods of resolving issues of public morality in this culture are deeply flawed, but I view with skepticism both the diagnosis--insufficient community participation in constitutional processes--and the cure--increased community participation in constitutional processes--suggested by the participation theorists. The call for increased participation in constitutional thought rests on the assumptions that constitutional questions are moral questions, and that constitutional debate is the forum in which we engage in moral decision-making. From these assumptions it follows that all citizens, not just courts, should take up issues of constitutionalism. If we take very seriously the text of the opinions in a significant number of recent constitutional cases, however, it is clear that as a descriptive matter, the assumption that constitutional questions are moral questions is flatly false. According to the Justices themselves, constitutional issues are by definition legal issues, as opposed to moral issues. Countless neutral principles constitutional theorists as well insist upon making a distinction between constitutional issues and moral issues. Thus, according to a well-respected strand of constitutional theory, as well as an increasing number of recent cases, constitutional questions are definitionally amoral, as are the answers they propose

The Strengthening of the Commission Competences by the Constitutional Treaty and the Principle of Balance of Power

A lot has been written about the European Commission as the main administrative institution of the European Community: about its work, competences, its organisational problems and the administrative reform initiated by President Prodi after the resignation en masse of the Commission of President Jaques Santer. This paper will, therefore, not attempt to repeat what has been explained about an institution which has been the motor of European integration representing the Community interest against the national interests of the Member States of the European Union. The aim of this paper is to analyse the reform of the Commission in the context of the work on the Treaty to establish a Constitution for Europe (hereinafter the Constitutional Treaty) and the potential effect of the strengthening of the Commission in the European constitutional process with regard to the principle of the balance of powers among the Community institutions. The new powers of control of the European Parliament with respect to the Commission, along with the Commission's political accountability to the European Parliament at constitutional level, are decisive factors which lead to the conclusion that there is no immediate risk of an infringement of the principle of the balance of powers by the constitutional process.European Commission; Constitution for Europe; institutions

Law as a Precondition for Religious Freedom

Throughout history, people have suffered for the sake of their religion. Religious organisations have been forbidden or governments have tightly controlled them. The constitutional protection of freedom of religion is a necessity. In a religiously pluralistic world, granting the guarantee is also in the state’s best interest. Yet religions have been hesitant to embrace the guarantee. It implies secularism. Religious freedom is balanced against other freedoms, and against legitimate state interests. Government is faced with social forces that are grounded in eternity and that cannot be proven to be wrong. Seemingly the constitutional protection is a threatening for religions and the state as it is beneficial. Yet the essentially pragmatic nature of law overcomes the tragic dilemma – albeit only at the price of acknowledging that jurisprudence is policy-making.religions freedom, neutrality principle, human rights, pragmatism, proportionality principle, balancing, margin of appreciation, regulability

“Settling the Question: Did Bank Settlement Agreements Subvert Congressional Appropriations Powers?” : Hearing Before The United States House of Representatives Committee on Financial Services Subcommittee on Oversight and Investigations, 114th Congress

The Constitution provides: ―No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . . This is not a mere technical provision but rather a fundamental element of constitutional structure. It sounds, first, in democracy, reflecting the deep constitutional principle that the power of the purse should be vested in the most representative branch. Every dollar appropriated from the Treasury may represent a dollar of taxes, and so this principle applies to both taxing and spending