Proportionality and Freedom -- An Essay on Method in Constitutional Law

This Article presents a functional explanation of recent developments regarding the method of constitutional interpretation in legal systems around the world. Described as “the most successful legal transplant of the twentieth century” and “a foundational element of global constitutionalism”, the proportionality method has spread from Germany to countries in Eastern Europe and South Africa and from Canada to Brazil to Europe’s supranational courts. This Article seeks to explain the method’s success, which has thus far remained elusive. It traces that success to how proportionality helps judges mitigate what Robert Cover called the “inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process.” More than alternative methods, proportionality answers the need to mitigate the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases. The Article offers a comparative analysis of proportionality in relation to other constitutional methodologies. The first three sections show how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis. Its aim is to synthesize fidelity to form and institutional structure (thesis) with “fact-sensitivity” to contexts in which specific controversies arise (antithesis). Proportionality positions judges vis-à-vis the parties and the parties in relation to one another differently from other constitutional methods.The next sections distinguish between constitutional perception and reality. The normative appeal of proportionality can be traced to the perception of its integrative aims. In reality, however, judicial technique does not entirely live up to those aims. As the Article shows through a detailed study of its various practical applications - such as the distinction between core and periphery of rights, the struggle to preserve the distinctiveness of this method\u27s different steps and the back-loading of the intensity of judicial review - proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. The final section discusses the implications of an approach to constitutional method such as that reflected in the advent of proportionality for the project of constitutionalism more generally

Cosmopolitanism and Constitutional Self-Government

This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is partly a function of that order’s responsiveness to the claims of citizens for institutional recognition and/or action (or inaction); judgments of legitimacy are, in part, judgments about normative responsiveness; 2) Distortion effects inevitably occur when citizens formulate their claims and when institutions translate and process them; in a constitutional democracy, such effects widen when impermissible social asymmetries of freedom and equality become ossified in constitutional doctrine and discourse; 3) Political legitimacy and the promise of self-government depend on the capacity of the constitutional system to build self-corrective mechanisms as means for preserving its responsiveness capacity. Legitimacy judgments are not binary judgments, but judgments of degree that can fine-tune to the existence and efficiency of such mechanisms; 4) Openness to the experiences in self-government of other political communities (for instance, by using foreign law in constitutional interpretation) is a self-correcting mechanism – it can open access to a community’s own processes of self-government, and it should open access to its institutions. The paper presents these claims as elements of a cosmopolitan political philosophy of constitutional law

Double Sovereignty in Europe? A Critique of Habermas\u27s Defense of the Nation-State

Jürgen Habermas’s influential account of the transnationalization of democracy is typically seen as a bold attempt to articulate the political-philosophical foundations of European integration. Habermas posits an identity split between individuals as citizens of their nation states and (the same) individuals as members of the future European Union. According to the dual sovereignty thesis, nation states and the EU are co-original and co-determinate. I challenge this conception on two grounds. First, split identity is a source of fragmentation that subverts the transnationalization of democracy. It would be irrational for EU citizens to partake in a project that empowers states to undermine European unification. Second, Habermas misinterprets European constitutional doctrine. The doctrines and practice of European constitutionalism do not provide support for the dual sovereignty thesis. In reality, European constitutionalism calls for a bolder jurisprudential account of European unification than Habermas’s concern with preserving the role of constitutional nation-states can provide

Reason and Authority in the European Court of Justice

This Article makes the case for a discursive turn in European law. Contrary to the prevailing view, politicizing the judicial discourse of the European Court of Justice would strengthen, more than undermine, the Court\u27s authority. This argument is made with reference to the ECJ\u27s reason giving practice, specifically to the relation between the form and content of its decisions. Allowing its members to write separate opinions will enable the Court to redefine its role on the European institutional and political stages The Article then answers doctrinal, institutional and juriscultural objections to its central thesis

Constitutional Transplants, Borrowing, and Migrations

This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of constitutional transplants (object, timing, motivations and patterns) and provides a framework for their normative justifications. The paper concludes with remarks on constitutional convergence

Against Bidimensional Supremacy in EU Constitutionalism

Scholarly consensus sees EU supremacy as “necessarily bidimensional”: the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law. I argue that this view of bidimensional supremacy is conceptually flawed and descriptively inaccurate. On the conceptual side, I identify the fallacy of symmetry (the idea that national and supranational perspectives on supremacy are similar in nature and equally reductionist), the fallacy of selection (the view that bidimensionalism alone can overcome what it perceives as an inevitable subjective bias in the choice between national and supranational supremacy claims), and the fallacy of construction (an originally shared popular sovereignty theory, which turns out to be riddled with biases that disrupt the equilibrium within the internally divided sovereign). On the interpretative side, I suggest that the empirical evidence in support of bidimensional supremacy is weaker than it is generally assumed. I then offer an interpretation of the PSPP judgment of the German Federal Constitutional Court, which holds a judgment of the Court of Justice of the European Union to be ultra vires, unlawful and thus non-binding. PSPP presents a problem of German origins and cast, rather than one stemming from the inner structure of EU constitutionalism. At most, PSPP represents a contingent, rather than necessary, and thus unexceptional instance of bidimensional supremacy

The Romanian Double Executive and the 2012 Constitutional Crisis

This paper analyzes the constitutional events in the summer of 2012 when Romania experienced the deepest constitutional crisis in the country’s post-communist history. It discusses the implications of these events for semi-presidentialism, a regime that splits executive power between the president and the prime minister, and which has become a popular choice for constitutional design in Europe and around the world. I ask how constitutional democracies that are still at a relatively early stage of political maturity can handle the pressures of ideological splits within the executive power. Is semi-presidentialism a good choice of regime for societies in transition to constitutional democracy? The article also approaches the crisis from the perspective of the European Union. After describing its complex role in the unfolding of the Romanian crisis, I ask about the intervention tools—legal and/or political—available to the Union in the event that one of its member states is at the brink of sliding into authoritarianism