Jack Balkin’s Rich Historicism and Diet Originalism: Health Benefits and Risks for the Constitutional System

In Living Originalism, Jack Balkin reasons from two points of view — the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.” Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about — or even deep awareness of — the pervasiveness of constitutional change can undermine self-confidence about one’s own constitutional convictions. Such self-confidence underwrites effective advocacy in the present. Historicism teaches that, time and again, many right-thinking people were wrong notwithstanding their certainty that they were right. This knowledge, which encourages consciousness of one’s own consciousness, may cause those of us who suffer from “modernist anxiety” to question why we should be so sure we are right today. Reasoning from the individual perspective, Balkin provides a persuasive, if imperfect, account of the importance of the constitutional text in the American tradition. But Balkin does not seem to register the potential consequences of turning to “originalism” following decades in which the term has been associated in public debates with a conservative political practice, and when conservatives control the federal judiciary. A progressive declaration in 2012 that “we are all originalists now” would risk lending unintended support to the ongoing fruits of conservative originalism, including an unsettling of the New Deal Settlement, the Second Reconstruction, and more. Such a development would be troubling not only from the perspective of progressive constitutionalists, but also from the perspective of the constitutional system. Conservative politicians and judges, who may either misunderstand Balkin or wish to repurpose him (as Balkin seeks to repurpose originalism), might use a progressive embrace of Balkin’s very thin version of originalism to throw everyone into an easily caricatured originalist camp. That misappropriation, in turn, might undermine the diversity of constitutional opinion that exists in fact and that secures the legitimacy of the system as a whole

Alternatives to Liberal Constitutional Democracy

The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security. Along these dimensions, the advantages of liberal constitutional democracy over the alternatives of social democracy of the type seen in Scandinavia, and bureaucratic authoritarianism of the type seen in parts of Asia, are not self-evident. Within Asia alone, seemingly functional alternatives to liberal constitutional democracy run the gamut from illiberal nondemocracy in China, to liberal one-party rule in Japan, to illiberal constitutional democracy in Singapore, to liberal constitutional nondemocracy in Hong Kong, to hereditary monarchy in Bhutan

Constitutional Analogies in the International Legal System

This Article explores issues at the frontier of international law and constitutional law. It considers five key structural and systemic challenges that the international legal system now faces: (1) decentralization and disaggregation; (2) normative and institutional hierarchies; (3) compliance and enforcement; (4) exit and escape; and (5) democracy and legitimacy. Each of these issues raises questions of governance, institutional design, and allocation of authority paralleling the questions that domestic legal systems have answered in constitutional terms. For each of these issues, I survey the international legal landscape and consider the salience of potential analogies to domestic constitutions, drawing upon and extending the writings of international legal scholars and international relations theorists. I also offer some preliminary thoughts about why some treaties and institutions, but not others, more readily lend themselves to analysis in constitutional terms. And I distinguish those legal and political issues that may generate useful insights for scholars studying the growing intersections of international and constitutional law from other areas that may be more resistant to constitutional analogies

Constructed Constraint and the Constitutional Text

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement or implement the constitutional text, it focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally thought to come into play only after the text is found to be vague or ambiguous: the purpose of a constitutional provision, structural inferences, understandings of the national ethos, consequentialist considerations, customary practice, and judicial and nonjudicial precedent. The constraining effect of clear text, in other words, is partially constructed by considerations that are commonly regarded as extratextual. This phenomenon of constructed constraint unsettles certain distinctions drawn by modern theorists: between interpretation and construction, between the written and the unwritten constitutions, and between the Constitution and the “Constitution outside the Constitution.” Although primarily descriptive, this Article also suggests that constructed constraint produces benefits for the constitutional system by helping interpreters negotiate tensions within democratic constitutionalism

Reverse Incorporation of State Constitutional Law

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to adopt the state courts’ near-unanimous conclusion that the proper standard of review for regulations of the “individual” right to bear arms is intermediate scrutiny. In an age of growing international comparativism, this lack of intranational borrowing is striking, especially since state constitutions served as the template for the federal constitution and generally protect the same rights as are found in the federal Bill of Rights. In a constitutional system that claims to be committed to federalism and respect for the states, why is it that state constitutional law has had such a slight impact on federal constitutional doctrine? This Article seeks to answer that question, and suggests that in certain circumstances federal courts should look to state constitutional law when faced with analogous federal constitutional controversies

The Adequacy of the Presidential Succession System in the 21st Century: Filling the Gaps and Clarifying the Ambiguities in Constitutional and Extraconstitutional Arrangements

Program for the Adequacy of the Presidential Succession System in the 21st Century: Filling the Gaps and Clarifying the Ambiguities in Constitutional and Extraconstitutional Arrangements.https://ir.lawnet.fordham.edu/twentyfifth_amendment_miscellaneous/1001/thumbnail.jp

DON’T WASTE YOUR VOTE (AGAIN!). THE ITALIAN CONSTITUTIONAL COURT’S DECISION ON ELECTION LAWS: AN EPISODE OF STRICT COMPARATIVE SCRUTINY

With a single judgment (sent. 1/2014), the Italian Constitutional Court has almost revolutionized Parliamentary election law, the national political landscape, the types of controversies with which it deals, and the means through which it reviews domestic legislation. In order to do so, the Court drew from globalized concepts and levels of scrutiny such as the so-called “proportionality test,” making explicit references to foreign decisions, while downplaying the Constitutional Framers’ intention. Although this decision has brought Italy closer in line with the trends that characterize contemporary global constitutionalism, its concrete effects on Italian law and the political system are not so promising or clear. This paper investigates the explicit and implicit sources of inspiration for the decision, its hidden implications, and it resonates with globalized trends in constitutional law

Democracy and Feminism

Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory\u27s emphasis on the importance of constraints on women\u27s choices has led to a neglect of questions of citizenship and sovereignty within a democratic system. By comparing mainstream constitutional theory and feminist theory, Professor Higgins highlights the existing limitations of both. She argues both that mainstream constitutional theory must take into account feminist arguments concerning constraints on individual choice and that feminist theory must take seriously the mainstream debate over democratic legitimacy. Integrating these distinct concerns, she suggests a framework for constitutional interpretation that reflects a feminist conception of citizenship under conditions of inequality

A comparison of European systems of direct access to constitutional judges: exploring advantages for the Italian Constitutional Court

As protection of fundamental rights increasingly becomes a defining feature of modern constitutionalism, some countries debate over the opportunity to introduce systems of direct individual access to constitutional judges to increase protection of constitutional rights. Part I of the article provides a comparative overview of the systems of individual constitutional complaint adopted in Europe, focusing on their functioning, structure and admissibility requirements. Part II addresses possible benefits of the introduction of such a system in Italy. After describing the main features of the Italian system of judicial review, the article details proposals that, since 1947, have been presented to introduce a system of direct individual access to the Italian Constitutional Court. Finally, Part III offers reflections on the potential advantages that adoption of such complaint would bring to the Italian legal system, compared to the currently existing avenues of access to the Court

The Supreme Court as a Filter Between International Law and American Constitutionalism

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this filtering role in four scenarios: the intersection of treaties and individual rights; the relationship between the treaty power and American federalism; delegations of authority to international institutions; and the domestic application of customary international law