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An introduction is presented in which the editor discusses articles in the issue on topics including "constitutional ideology"; "citizens' preferences regarding constitutional detail and flexibility in Japan", and "care should be recognized as a constitutional value".

A rich literature links the survival of national constitutions to their legitimacy among citizens. However, most studies examine constitutions as a bundle of rights and institutions, and few test the micro-foundations of constitutional preferences explicitly. This article examines how individuals evaluate both the content and flexibility of discrete constitutional elements using a conjoint experiment in Japan. Respondents were asked to rate twenty-six hypothetical constitutions that varied randomly in their enumeration of twelve rights and institutions. We find that citizens generally prefer constitutions that enumerate more provisions, with greater weight placed on human rights than political institutions. This result largely confirms theoretical expectations from earlier work on comparative constitutional design. In addition, political factors, such as partisanship, moderate preferences on issues that have long divided progressives and conservatives in Japan, such as constraints on the military and establishing national emergency provisions. By contrast, socioeconomic characteristics such as income, age, and education do not, suggesting broad demographic consensus on the merits of distinct provisions. Importantly, we further demonstrate that citizens do not trade off constitutional detail and flexibility, as suggested by existing research. Respondents who prefer the enumeration of more provisions do not necessarily want a lower amendment hurdle to facilitate adaptation to new circumstances. Preferences about constitutional flexibility appear to be based on strategic imperatives, notably the desire to cement preferred provisions and prevent changes by future majorities. [ABSTRACT FROM AUTHOR]

Around the world, interim (temporary) constitutions are enacted as bridges to peace and democracy, expected to deliver fragile societies from conflict and authoritarian rule. Despite their growing use in recent years, their legal examination has to date largely been relegated to liminal spaces in existing bodies of scholarship, which variously conceive of them as constitutions, peace agreements, hybrid constitution-peace agreements, and procedural options in constitution- and peace-building efforts. Are these four understandings accurate and, if not, what do they miss? This article highlights all (proto-)interim constitutions enacted since 1789—more than 150 of them—as well as the historic events that prompted their enactment. It is argued that interim constitutions possess a combination of features that render them legally distinct from other constitutional instruments, as well as peace agreements. It is further demonstrated that interim constitutions are consistently enacted in the context of exceptional factual and legal circumstances, thereby disrupting ten assumptions in the state of the art regarding their purposes and optional use. It is concluded that understanding the legal distinctiveness and exceptional use of interim constitutions is essential for understanding what they are, why they are enacted, and whether they perform "successfully." [ABSTRACT FROM AUTHOR]

On November 30, 1980, the people of Uruguay were called on to vote on a new constitution whose objective was to legalize the military dictatorship that had ruled Uruguay since 1973. The proposed constitution would reestablish elections, political parties and an independent judiciary, but all subject to overrule by the National Security Council (COSENA), the junta of military leaders that acted as the nation's de facto ruling body. Despite the highly repressive political environment in which the plebiscite was held, the citizenry rejected the draft in resounding fashion by a vote of 57% to 43%. Although the Plebiscite of 1980 was certainly a "failure" from the regime's point of view, it is considered a founding moment in Uruguayan history during which the dictatorship was delegitimized and the process of redemocratization triggered, culminating in a democratic transition in 1985. This case illustrates that constitutional failures can be successes in the long term when they launch deeper processes of democratization or constitutionalism. [ABSTRACT FROM AUTHOR]

Referendums appear to be the most majoritarian of democratic processes. The simplicity and equality they offer through voting look like the essence of majoritarianism. Indeed, this simplicity and equality are often argued to be central to referendums' appeal. This article argues that this appearance of majoritarianism is misleading. Paradoxically, without supermajority requirements, binding referendums on constitutional issues cannot offer the simplicity and equality majoritarianism requires. This article identifies three different types of majority requirements and where and when these requirements are used worldwide. It then demonstrates why, at least for binding referendums on constitutional questions, special majority requirements are necessary to maintain the principles of majoritarianism. It shows that there is always a case for turnout thresholds in referendums and further special majority requirements depending on the context. Finally, the article argues that the case for special majority requirements can be context-dependent without collapsing into indeterminacy. [ABSTRACT FROM AUTHOR]

This reply to Antoine Vauchez deploys a constitutional perspective to analyze three critical moments identified by Vauchez in the institutional evolution of the European Union. It argues that a constitutional lens offers a more robust perspective for considering the key issues underlying each of the "critical junctures." It enables a clearer identification of the costs to the EU of prioritizing functional objectives over democratization. It places debate about the independence of the European Central Bank within the broader context of how to situate expert bodies within governance structures. The debates around the judiciary in Hungary and Poland can be seen as part of the inevitable tension between viewing Europe's construction as a work in progress towards "ever closer union" and the idea that the basic rules of democratic political association should be settled and stable. Far from being a benign "proxy" for Europe's constitutional evolution, "independence" obscures the real issues and the costs of evasion. [ABSTRACT FROM AUTHOR]

Constitutional interpretation is usually assumed to be a particular kind of legislative interpretation—particular, because constitutions have characteristics of their own, yet legislative interpretation all the same, because constitutions are written laws enacted by a (supreme) political authority. This article argues that the legislative paradigm is ill-suited to constitutional interpretation, for it represents an encroachment of the ontology of legality on the realm of constitutionality. Making sense of an object as a constitutional norm presupposes the a priori category of the constitution, understood as a substantive category in its own right, as intimated in the tradition of liberal democratic constitutionalism. It is this presupposition that makes constitutional meaning possible and justifies considering constitutional interpretation as something peculiar to itself, seriously downplaying the significance of contingencies of form, language, structure, and history in constitutional argument. [ABSTRACT FROM AUTHOR]

What is the nature and source of prerogative power? Where does it come from and how was it created? British constitutional law makes several assumptions in these regards. It assumes that these powers are inherent in or intrinsic to the Crown and it assumes that these powers are common law powers, meaning that they are constituted or conferred by the common law. This article takes issue with these conceptions of the nature of prerogative power. It shows that the idea that prerogative powers are sourced in the common law is derived from the seventeenth century's theory of the ancient constitution; a theory famously advocated by Sir Edward Coke and embodied in his observation that "the King hath no prerogative but that which the law of the land allows him." However, as the article shows, this theory of the ancient constitution was not an accepted theory of law in the seventeenth century, but rather an intensely contested political theory. It occupied a battlefield of constitutional ideas along with theories of kingly power sourced in conquest and the divine. Moreover, although these theories disagreed about the source and extent of prerogative power, they all posited a protocorporate Crown wedded to dynastic succession. The article shows that, from the perspective of a corporate Crown, the Glorious Revolution of 1689 resulted in the effective dissolution or dormancy of the kingly corporation embodied in James II, requiring that the Crown and kingly power be remade anew in the United Kingdom's last "historically first" constitutional event. Through a close reading of the Bill of Rights and the proceedings of the Convention Parliament of 1689, the article evidences the statutory remaking of the Crown and prerogative powers and shows how from 1689 to today prerogative powers should be understood as a grander form of statutorily delegated power. [ABSTRACT FROM AUTHOR]

The classic legal approach to legislative ouster clauses in the common law was articulated by the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission. However, recent developments in both the United Kingdom and Singapore indicate a judicial desire to shift away from that approach towards a more flexible analysis of an ouster clause's effect, centered on the rule of law. This article highlights the significance of those parallel developments, especially given the starkly differing constitutional contexts shaping the approach to ouster clauses in the two jurisdictions. Capitalizing on these trends, it proposes a comparative assessment of the materiality of various microcontextual considerations in ouster clause analysis in the two jurisdictions—considerations such as the nature of the subject matter and the characteristics of the decision-maker—and inquires into the normative implications in each jurisdiction of these developments in ouster clause doctrine. [ABSTRACT FROM AUTHOR]

The global Covid-19 pandemic has disrupted the private, family, and professional lives of individuals worldwide. This article discusses its impact on constitutional values in Slovenia and Spain, drawing primarily on my personal experiences. In the past two years, individuals in both countries have suffered greatly due to the pandemic. Millions lost their lives, whereas many continue to suffer the long-term effects of Covid-19. Since the start of the pandemic, the constitutional values of coexistence, mutual respect, human dignity, freedom, and solidarity have been under stress in both societies. The Slovenian and Spanish authorities have employed various measures and restrictions to curtail the spread of the pandemic, some more successful than others. The statistical data illustrates that the pandemic has more affected Slovenian society than Spanish, based on Covid-19 deaths per million inhabitants. This article posits a hypothesis, based on personal experience and observation of both constitutional systems, that the understanding and implementation of constitutional values during the pandemic depended on each country's traditions, culture, and customs. The article explores the reasons for such discrepancies between the two European countries. It submits that traditions, culture, and historical legacies have shaped the countries' approaches to protecting constitutional values during the global Covid-19 pandemic. [ABSTRACT FROM AUTHOR]

In their provocative article, Po Jen Yap and Rehan Abeyratne offer a theoretical and pragmatic defense of a somewhat "troubling decision" of the Bangladesh Supreme Court in Asaduzzaman Siddiqui. This article provides some critical remarks on the authors' evaluation of Siddiqui in both theoretical and pragmatic terms. In order to do this, we seek to advance two lines of argument. First, we note that, in offering theoretical justification, the authors have made a problematic choice of using two seemingly irreconcilable ideas—the idea of dismemberment and the basic structure doctrine. While using these two ideas in tandem, they did not remain, in our view, entirely true to the promise of either of them. Second, we argue that, although the authors' defense of Siddiqui on pragmatic grounds seems to be revealing, its legitimacy can, however, be questioned, insofar as Siddiqui's recourse to the Fifteenth Amendment shows contradictory appropriation itself of pragmatism in its own reasoning. [ABSTRACT FROM AUTHOR]

Constitutional change can be produced through judicial interpretation when a particular dictum becomes informally entrenched and creates a new constitutional meaning without the need for a formal amendment. However, scholarship has not yet scrutinized the form of legal reasoning that may be used to push for such a change. The purpose of this article is to analyze the role of expressivism in justifying constitutional change through judicial interpretation. For this purpose, I have developed the expressivist framework into what I call "operationalized expressivism," which refers to constitutional courts interpreting references to constitutional identity in the constitution such as to create a juridical effect. I then use the dissenting opinion in the Indonesian LGBT case as a case study of how operationalized expressivism can initiate a constitutional change. I have selected this particular opinion because of its potential to radically transform the constitutional landscape of Indonesia, as the dissenting judges have declared the Indonesian Constitution as a "Godly" Constitution that requires all laws to be consistent with religious values. [ABSTRACT FROM AUTHOR]

This article explores the phenomenon of informal constitutional change with a particular focus on the role played by intergovernmental agreements (IGAs) concluded between members of a federation. It has two objectives. The first is to add IGAs to the catalogue of methods through which constitutions are altered without recourse to formal amendment procedures. Using Canada as a case study, we highlight a paradox: by rendering unconstitutional certain legislative initiatives meant to circumvent formal rules of constitutional amendment, courts are actually inviting political actors, notably the executive branches, to resort to even more fluid and informal methods of altering the Constitution. Second, we bring the concept of "para-constitutionality" into the broader literature on informal constitutional change. Para-constitutionality captures two distinct dimensions of informal constitutional change which are often conflated. "Para" in the Greek sense signifies "circumvention." The focus here is on effectivity, on the impact of mechanisms (such as IGAs) on the overall constitutional order. By contrast, "para" in the Latin sense means "against." It is concerned with constitutional (in)validity. We seek to underscore that even when strategies are not found to be unconstitutional, they may nevertheless have a transformative impact on the overall federal architecture. In conclusion, we suggest that an implicit commitment to intergovernmental transactions and compromise, both inherent to federalism, may explain judicial benevolence in the face of negotiated para-constitutional engineering mechanisms, in contrast to unilateral legislative attempts at informal constitutional change. [ABSTRACT FROM AUTHOR]

Since 2018, the radical right party Vox has been part of the political landscape in Spain. This the article analyzes Vox's electoral manifesto and some important speeches of the party's leaders, in order to address three main topics. First, the article explains how key themes of liberal constitutionalism feature in the narrative of the party. Second, the article analyzes the extent to which Vox's policy proposals can be described as illiberal. Third, the article doctrinally assesses to what extent such proposals are compatible with the Spanish Constitution. Contributing to the literature on radical right parties and illiberalism, this article describes the main traits of Vox's current political approach to constitutionalism. It is argued that these traits can be summarized in three main features: partisan use of constitutional rhetoric, constitutional double standards combined with selective constitutionalism, and unconstitutionality of core policy proposals. [ABSTRACT FROM AUTHOR]

The growth in the power of the executive branch of government has been accompanied by a related growth—heretofore unexplored in the literature on comparative constitutional law—of the role and importance of executive legal advisors. These influential but often secretive advisors can be the first—and sometimes the only—group to review the actions of the executive or legislative proposals before enactment, for compliance with the constitution. In this article, we compare this practice in four similar but somewhat distinct jurisdictions—the United Kingdom, Canada, the United States, and Ireland—to assess its impact on constitutionalism and the executive power. We conclude that the practice of constitutional review by executive lawyers is highly variable, changing between places and over time along four key axes that can either empower or constrain the executive to varying degrees. It can restrain executive action by holding it within constitutional boundaries; it can bolster the executive power by giving legalistic credibility to its actions while providing little restraint in practice; or it can create policy distortion by overly tightly binding executive and legislative action. Constitutional advice from executive legal advisors, then, does not operate as an exogenous constraint on executive power, but can be structured and manipulated by the executive to have various different effects. As such, we argue that this institution requires much more attention from both comparative constitutional lawyers and constitutional designers to map its effects on the constitutional order and to see what structures, processes, and cultural factors might shape it. Finally, we argue for increased transparency in the provision of executive constitutional advice, as without this, even understanding its effects is extremely difficult. [ABSTRACT FROM AUTHOR]

Over time, a constitution may become suboptimal for the political system that it is meant to support and yet remain in place, largely unchanged. Thus, we might ask how a constitution might be designed to remain ideal for a democracy as it evolves, and indeed whether this is even possible. This practical dilemma has not been rigorously analyzed in the literature on constitutional design, however, because this research agenda has tended to downplay the potential for democracies to transform over time. To remedy this gap, this article sketches an explicitly temporal approach to design, which takes account of a wide range of political system dynamics. The framework contributes insights into the various ways that constitutional structures can be designed to operate over time; the alignment between these setups and different political system dynamics; and the means by which a constitutional design process might be reconfigured to give more weight to the prospect of fundamental political change. [ABSTRACT FROM AUTHOR]

In Thailand, Indonesia, and Myanmar, the military's participation in politics and governance remains commonplace. These militaries occupy bureaucracies, manage elections, and occasionally even oust governments. Yet, these militaries are not rulers with iron fists: they never fail to adopt or participate in the drafting of constitutions, and constantly appeal to political actors embodying non-democratic notions of legitimate rule for support. So why do these militaries do so, and how do those constitutions affect their participation in politics thereafter? This article explores the relationship between militaries, legitimate rulers, and constitutions in Southeast Asia. It finds that constitutions are adopted to formalize political bargains between militaries and legitimate rulers, and that those constitutions then shape the militaries' role in politics according to their provisions until political circumstances fundamentally change. The constitutional civil–military dynamic identified herein complements existing accounts in civil–military relations and comparative constitutional scholarship, by showing how constitutions can affect the militaries' political role in non-democratic regimes. [ABSTRACT FROM AUTHOR]

Although constitutions establish countries' fundamental laws, identifying which legal materials are constitutional is not a straightforward task. Empirical studies in comparative law have focused on countries' formal, written constitutions—the "large-C" constitutions—while often ignoring the broader body of constitutional rules—the "small-c" constitutions. This oversight occurs because incorporating small-c constitutional law into comparative research requires overcoming the conceptual challenge of identifying which legal sources should be considered constitutional and the practical challenge of quantifying those sources across jurisdictions. In this article, we address both of these challenges. We address the conceptual challenge by outlining three approaches to identifying small-c constitutions: an entrenchment-based approach that emphasizes whether given rules are more deeply entrenched than conventional laws, an external approach that emphasizes exogenously defined core constitutional functions, and an internal approach that emphasizes local understandings of constitutional law. We then partially address the practical challenge by using an internal approach to collect data on one aspect of constitutional law: constitutional rights. We collected this data for 123 countries by conducting an expert survey of constitutional law scholars and practitioners. Our data reveals that although the large-C constitution is the primary source of constitutional rights in a majority of countries, the small-c constitution is still a notable source of rights, especially in older constitutional systems. But although our data offers new evidence about small-c constitutional rights around the world, it also points to several substantial obstacles that any efforts to code small-c constitutions are likely to face. [ABSTRACT FROM AUTHOR]

Constitutional economics—the analysis of constitutions drawing on the economic approach—has made important progress over the last two decades. The factors determining whether a constitution is complied with, however, have received only little attention. This is surprising, as a huge gap between constitutional text and constitutional reality seems to exist in many countries. In this article, this gap is referred to as the de jure/de facto gap. The article discusses ways in which the gap can be researched systematically and surveys the scant available literature that has tried to do so thus far. [ABSTRACT FROM AUTHOR]

In Latin America, the drafters of early nineteenth-century constitutions were skeptical of implementing republican forms of government. At the turn of the twentieth century, Uruguay became an exception by bucking this legacy. Under the Swiss-educated reformist José Batlle y Ordóñez (1856–1929), the groundwork was laid for a new constitution that would bring about a secular democratic republic. Indeed, the 1918 Constitution replaced a conservative and centralist constitutional system with a plural executive and a regime of participatory democracy. This article advances a new interpretation of Batllista Uruguay's distinctive institutions and argues that, despite the 1918 Constitution's brief endurance, Uruguay's distinctly republican form of democracy has proven to be an effective mechanism for constitutional entrenchment by virtue of its having helped to create popular support for the rule of law and institutional stability. [ABSTRACT FROM AUTHOR]

Latin America has provided a fertile ground for constitutional experimentation. The Ecuadorean Constitution of 2008 purported to change the entire liberal constitutional model and replace it with one in which indigenous concepts from the Andean region are central. At the same time, the constitutionalization of the legal order was not repudiated, and a reinforced procedure for constitutional amendments was still included. It seems, however, that even an extended rights catalogue and reinforced amendment procedures could fail to induce a real paradigm change if the commitment to protect the constitution as higher law is missing. The present article seeks to show that more flexible amendment rules might foster the rule of law and stability better than those that are unrealistic or bluntly ideological, especially where the value of constitution-as-higher-law is not authentically reflected in the governed society. In these cases, flexible amendment rules could help restore trust in law's authority and constitutional institutions, and they could also assist in guiding political actions under the guise of law, instead of surrendering them to a mere political power struggle. Building on the experience of a series of constitutional substitutions from Ecuador's three main constitutional phases, the article strives to enrich our understanding of issues related to amendment difficulty, institutional design, and constitutional culture. [ABSTRACT FROM AUTHOR]

Legal designers use different mechanisms to entrench constitutions. This article studies one mechanism that has received little attention: constitutional "locks," or forced waiting periods for amendments. We begin by presenting a global survey, which reveals that locks appear in sixty-seven national constitutions. They vary in length from nine days to six years, and they vary in reach, with some countries "locking" their entire constitution and others locking only select parts. After presenting the survey, we consider rationales for locks. Scholars tend to lump locks with other tools of entrenchment, such as bicameralism and supermajority rule, but we argue that locks have distinct and interesting features. Specifically, we theorize that locks can cool passions better than other entrenchment mechanisms, promote principled deliberation by placing lawmakers behind a veil of ignorance, and protect minority groups by creating space for political bargaining. Legislators cannot work around locks, and because locks are simple and transparent, lawmakers cannot "break" them without drawing attention. For these reasons, we theorize that locks facilitate constitutional credibility and self-enforcement, perhaps better than other entrenchment mechanisms. [ABSTRACT FROM AUTHOR]

An editorial is presented on political parties approving a multipartisan agreement aimed at initiating a process for replacing the current Constitution. Topics include crucial issues associated with social and economic rights partly dominated by neoliberal norms; and constitutional model involving a desire for social transformation and the need for participating in a democratic constitution-making process and rejection of the authoritarian legacy.

Courts around the world today are empowered to strike down unconstitutional constitutional amendments. But can a court strike down amendments that restore parts of the original constitution? The Appellate Division of the Bangladesh Supreme Court did precisely this in Bangladesh v. Asaduzzaman Siddiqui (2017), holding unconstitutional an amendment that restored the judicial removal provision that existed in the original 1972 Constitution. This article analyzes Siddiqui within the comparative constitutional amendment literature and the broader South Asian context. Despite the apparent incongruity of applying the basic structure doctrine to an original constitutional provision, we argue that Siddiqui is defensible on both theoretical and pragmatic grounds. The amendment that was invalidated in this case represented an unconstitutional departure from the judicial removal practice that had existed for several decades and was entrenched by a previous amendment, which "dismembered" the original constitution and safeguarded constitutional democracy in Bangladesh. At a regional level, Siddiqui is similar to recent judgments in India and Pakistan in which apex courts assert their control and limit political influence in judicial appointment and removal proceedings. Such judicial self-dealing, we argue, is more justified in Bangladesh and Pakistan than in India due to their checkered histories with democracy and political interference with judicial functions. [ABSTRACT FROM AUTHOR]

The author comments on Stephen Gardbaum's article on comparative political process theory (CPPT). The aim of the article is to update and expand the scope of the political process theory offered by John Hart Ely. She explores challenges for or limitation to Gardbaum's conceptualization of CPPT which are non-responsiveness to limits on judicial capacity and tendency to expect a judicial role that is too limited or late to be effective in stopping threats to constitutional democracy.

This article charts the historical marginalization of Pashtun tribal areas to the periphery of the Pakistani state and undertakes an analysis of the recent movement for their integration in Pakistan's constitutional structure. It also analyzes contemporaneous developments in Pakistan's constitutional system, in particular the accommodation of a stronger form of federalism and the emergence of a powerful judiciary brandishing robust judicial review and fundamental rights jurisdictions, which have provided both the backdrop and impetus to the integration of the Federally Administered Tribal Areas (FATA) in Pakistan's constitutional system of governance. The article asserts that this case study of FATA's integration demands an acknowledgment of the deeply political and inherently transitional nature of constitutionalism in Pakistan, and arguably many other parts of the Global South. [ABSTRACT FROM AUTHOR]

This article argues that parliamentary sovereignty's assimilation of constituent power—the ultimate power in a legal order to create and posit a constitution—has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the United Kingdom currently faces. By conceptualizing a more antagonistic relation between the Crown in Parliament and "the people" by questioning the democratic credentials of the former, this article contends that the UK constitutional order can be reinvigorated. This reappraisal, however, also requires the interrogation of the notion of "the people" in the UK constitutional order itself. Thus, despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty's inviolability is stultifying deeper constitutional reform. The result is a constitutional law in "crisis" in search of a paradigmatic revolution. A descriptive—as distinct from normative—account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and "the people." Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much of what the idea of constituent power does. However, this does not mean that constituent power is vested in "the people"; rather, the locus of constituent power in the United Kingdom should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and "the people." [ABSTRACT FROM AUTHOR]

An introduction is presented in which the editor discusses articles in the issue on topics about peace processes and constitution-making.

Much of the day-to-day work of implementing constitutional law falls to the executive actors. Ministers, policy advisers, public servants, government agencies, government lawyers, and legislative draftspersons develop public policy and legislation within the shadow of the constitution. The first contribution of this article is to advance a normative model to guide the work of these actors. It accepts the primacy of judicial review, but nonetheless supposes significant space for the other branches of government to engage normatively with the constitution. In particular, we argue that areas of constitutional "uncertainty" present the executive with space for particularly lively engagement with the constitution. In these spaces, the executive should have institutional confidence to engage more autonomously with constitutional norms. In such areas, the executive should consider, with appropriate weight, the risk of breach of constitutional norms together with other legitimate influences on policy development, consistent with the executive branch's institutional mandate. We also argue that key to this understanding of the relationship between the executive, the judiciary, and constitutional norms is one particular, pivotal actor: the government lawyer. The second contribution of this article is its empirically informed study of the constitutional understanding and practice of executive officers. We find considerable evidence of careful executive deliberation in areas of constitutional uncertainty. However, perhaps paradoxically, we also see instances of executive over-cautiousness. Other interviews reveal evidence of constitutional recklessness in the development of new law and policy in areas of constitutional uncertainty. In either of these instances—over-caution or recklessness—we argue executive engagement with constitutional norms is sub-optimal. [ABSTRACT FROM AUTHOR]

The traditional view that only states have human rights obligations and, relatedly, that a constitution operates only vertically has been changing. In Uganda, as is the case in several other African countries, the Constitution expressly states that the rights and freedoms it recognizes must be respected, upheld, and promoted by all persons and organs of state, but the practical implications of this provision remain unexplored. So far, Ugandan courts have shown willingness to hold non-state actors directly responsible for violations of constitutional rights, although they are yet to use the language of horizontality expressly. Furthermore, Ugandan courts do not seem particularly troubled by the principle of subsidiarity which holds that statutory and common law remedies must be pursued first before recourse may be had to direct constitutional remedies. This has made it possible for litigants to bring direct constitutional suits against state and non-state actors in one action or to plead both constitutional provisions and statutory provisions, or direct and indirect horizontality, to enforce constitutional rights. This is a significant departure from the existing practice of constitutional horizontality in comparative constitutional law. In other respects, however, such as recognizing the duty to protect and applying the principle of third-party effect of constitutional rights, Uganda's constitutional jurisprudence remains underdeveloped. [ABSTRACT FROM AUTHOR]

The article presents the discussion on focusing on the framing of the Indian Constitution between 1946 and 1950. Topics include offering new and significant contributions to the understanding of democratic transition and the Constitution; informing the vision of codification, centralization, and noncommunal representation; and drawing links between the decision for centralizing and the imperatives of democratization and development.

The article presents the discussion on Indian Constitution. Topics include focusing on memorializing the "fundamental duties" of the citizen in the constitution ranging from respecting public property and adjuring violence; and protesting the changes to the citizenship law by affirming constitutional values of equality, liberty, and fraternity.

The author reflects on I•CON, a community of readers and authors, and doctrinal genre in which immediate reactions to the COVID-19 crisis, review of book "Law's Relations" and new Constitution, declaring Catalonia eternally sovereign and indivisible. It mentions a poem "Pandemic" by Lynn Unger and Comparative studies on judicial review usually work on models. It also mentions judicial activism and self-restraint or deference, passive and active virtues of courts.

This article discusses the impact of citizen participation and elite cooperation in constitution-making on the deepening of an already existing electoral democracy. It argues that while direct citizen involvement in the drafting of constitutions may be desirable on normative grounds or necessary for pragmatic reasons, only cooperation among a plurality of elected political representatives at the constitution-making stage is likely to improve the liberal dimension of democracy after the enactment of the new constitution. Inclusive constitutional agreements at the level of representative elites not only establish legal limits on state action but may also provide opposition parties and citizens alike with the means to make institutional constraints on executive power and civil liberties effective. This effect is usually observed during the early years of life of the new constitution, when the balance of power among the political forces that created the constitution tends to remain stable. I find preliminary support for this argument analyzing aggregate data and selected case studies from all episodes of democratic constitution-making in the world between 1900 and 2015. [ABSTRACT FROM AUTHOR]

Participatory constitution-building during times of transition from war to peace or from authoritarian to democratic rule is quickly becoming an established norm. This article analyzes and compares two Fijian participatory processes; the 1993–1997 process and the 2012–2013 process. The purpose of doing so is to understand the extent to which these processes were genuinely participatory in terms of extending the Fijians' possibility of influencing the content of the constitution. The article concludes that these processes were merely symbolic in terms of public participation; that there is not much that public participation can achieve in and by itself; and that the sequencing of public participation and secluded political elite negotiations in the context of constitution-building during times of transition is a field of research that is in dire need of further systematic analysis, particularly as an increasing amount of post-conflict and post-authoritarian states endeavor participatory constitution-building. [ABSTRACT FROM AUTHOR]

The article offers information on Irish Constitutions of 1922 & 1937 and its dominion status. Topics include, dominion from 1922 to 1937 Ireland represents a bridge between the old dominions of Canada, Australia, New Zealand, and South Africa and the post-World War II new dominions of India, Pakistan, and Ceylon; implications of the prevailing Diceyan concept of Westminster parliamentary sovereignty; and Ireland moved away from British constitutionalism.

This article critically evaluates dialogic theories of judicial review. It focuses on three main criticisms. Dialogic theories of judicial review can be criticised for being overinclusive in their application to vastly different constitutional systems; overenthusiastic in their preference for weak forms of judicial review; and overly positive in their characterization of systems as "dialogic," ignoring the existence of interbranch conflict and instances of negative exchanges. This article contributes to this critical conversation on dialogic theories in the context of Asia, specifically Singapore and India. Recent attempts to justify these systems as "dialogic" exemplify these criticisms. The problem of overinclusiveness is easily apparent given that Singapore and India are examples of, respectively, weak and strong forms of judicial review in the common law world. The eagerness to extend dialogic analyses to such vastly different systems leads to problems. The enthusiasm to justify Singapore's weak-form review as dialogic can potentially lead to a slowed-down advance on constitutionalism. The optimistic vision of constitutional amendments by the political branches in India following judicial review proceedings as a tool for interbranch exchange ignores the combative and tense constitutional conversations surrounding such amendments. [ABSTRACT FROM AUTHOR]

The article explains the normative foundations of the use of foreign law in constitutional reasoning. It pursues four claims. First, it argues that a normative explanation of the use of foreign law must elucidate the connection between foreign legal facts and moral values. Second, it distinguishes between the deductive model of the use of foreign law, which ascribes value to foreign legal facts directly, and the reflective model, which ascribes value to the outcomes of the reflective process facilitated by foreign legal facts. Third, it shows how the deductive model fails to explain the value of foreign law for constitutional judgment. Fourth, the article demonstrates how the reflective model can be justified with reference to a set of virtues of good moral judgment, but argues that this model poses important limits to the use of foreign law. [ABSTRACT FROM AUTHOR]

The article presents a response to the article "Hubris, Constitutionalism, and the Indissoluble Unity of the Spanish Nation" by Hèctor López Bofill on repression of Catalan secessionist referenda in Spanish constitutional law. Topics discussed include unity of the state and the independence of Catalonia; historical confrontation between two separate, sovereign, and comparable political entities; and transformation of the Spanish state to an illiberal democracy.

The article offers information on the indissoluble unity of the Spanish nation. Topics discussed include national conflict under the constitutional regime and creation of the Spanish Kingdom in the fifteenth century; the origins of the Catalan-Spanish conflict in Spain's twentieth century; and right to self-determination of peoples in liberal democracy.

The article offers information on critical points, which contest some of Bruce Ackerman's views and advance a different perspective on some of his claims about the Indian constitutional experience. It informs that Bruce Ackerman is a leading scholar of the U.S. constitutional tradition and is perhaps known for his grand multivolume study.

The article offers information on the Constitution of the Italian Republic.

In this short essay, I respond to the Foreword article by Doreen Lustig and Joseph Weiler. This important article maps three subsequent waves of judicial review: (1) courts ensuring that domestic laws conform to the constitution; (2) courts ensuring that domestic laws conform to international law, and (3) courts re-asserting the primacy of the constitution over international law. The article's most important contribution is the mapping of the third wave, which is a response to the growing importance of international law in domestic legal orders, and entails national courts scrutinizing the constitutionality of international law along with the emergence of a judicial discourse that emphasizes national identity. This response focuses on the nature of the third wave. Specifically, while I believe that the third wave is important and real, I develop two slightly different hypotheses about its nature. My first conjecture is that some features that Lustig and Weiler regard as part of third wave are so closely connected to the second wave that they might not represent a new wave at all. Specifically, while the importance of international law in domestic legal orders has increased, the vast majority of countries have long had constitutional safeguards in place to ensure the primacy of the domestic constitution. As a result, when courts review the constitutionality of international law, they are not doing anything new or unusual: they are merely fulfilling their long-standing constitutional duty. My second conjecture relates to the causes of the third wave. While Lustig and Weiler argue that the discourse of the third wave emerged in response to the problems of the first two waves, I hypothesize that it might instead reflect broader social change. Specifically, as populist movements have been swept into power by appealing to nationalist rhetoric, courts may be responding to these larger societal trends. [ABSTRACT FROM AUTHOR]

This article outlines a theory of statehood which rejects the commonplace notion, strongly influenced by Carl Schmitt, that sovereign statehood is in a process of decline, owing largely to the growing power of international norm setters. It argues that this view results from a simplified construction of statehood, which misinterprets both the historical and the functional formation of state institutions. As an alternative, it explains how modern society is marked by a dramatic growth in the power of states, and that most contemporary states possess greater effective sovereignty than their historical predecessors. It argues that, paradoxically, the rising sovereignty of states is attributable to factors that are usually seen as restricting the power of states; in particular, national states factually presuppose international norms for their effective exercise of sovereign power. [ABSTRACT FROM AUTHOR]

This article introduces the Symposium on Law, Polity, and the Legacy of Statehood. The general aim of the Symposium is to identify and interrogate key background assumptions that shape contemporary debate and controversy over the relationship between legal normativity and political architecture. In particular, we seek to shed light upon the different suppositions and conjectures that inform analysis of the place of law as a source of institutional design and form of cultural expression within a state-centered framework in an age in which the position of the state within the global configuration is undergoing significant change. In so doing, we focus on three sets of factors which challenge the continuing centrality of the state-law paradigm within our governance architecture. These are the development of new forms of polity nesting within and beyond the state, the extension of transnational policy domain specialization, and the disembedding of certain frameworks of legal normativity from any and all polity settings. [ABSTRACT FROM AUTHOR]

This article focuses on the tension between the "institutional" and "normative" dimensions of the constitutionalization of global governance institutions. It is commonly acknowledged that, under certain circumstances, developments that are plausibly "constitutional" from an institutional perspective might actually be counterproductive when viewed normatively; that is, they might lead to a decrease, rather than an increase, of the legitimacy of the governance institution in question. This article seeks to offer an account of why this might be the case. The article begins by setting out a definition of legitimacy, which takes as basic the notion of legitimate action, and then distinguishes between two quite distinct roles that consent can play in the legitimacy calculus. This definition then ties this back to constitutionalism in global governance, and sketches certain—necessarily somewhat speculatively—implications of this for the potential of "constitutionalism" to improve the legitimacy of global governance institutions. [ABSTRACT FROM AUTHOR]

Legal systems and states typically, and perhaps necessarily, have a limited geographical scope Territorial issues infrequently become the focus of constitutional scrutiny, and then usually in the peripheral instances of contested territorial claims and secession. Drawing on a newly compiled dataset of all state constitutional provisions addressing territory, I develop a new theory about the general relationship between laws and the geographic limits on their application. In particular, I advance an explanation both for why most constitutions do not seek to define the national territory with any specificity and for why some constitutions attempt that task. I argue that the silent conventions of geographically discrete groups determine the geographical scope of a constitution's application. Constitutional delineations of the national territory are therefore unnecessary. Nevertheless, textual delineations of territory can achieve three purposes: they can clarify the silent conventions, express territorial claims over contested territory, and contract the scope of the constitutional order. This relationship between silent conventions and constitutional text has implications for the question of whether constitutions should include a right to secede and for how constitutions can function as sites of territorial contestation. [ABSTRACT FROM AUTHOR]

Glossing a passage from Benjamin Constant's Reflections on Constitutions, this article first assesses the roles performed by silences, gaps, and abeyances in constitutional texts and then examines recent initiatives that seek to fill those silences. The initiatives to fill those silences are evaluated by contrasting three conceptions of modern constitutions: the constitution as a framework for continuing political negotiation, the constitution as an order of values, and the constitution as facilitator of an evolving administrative order. The first, the framework conception, highlights the importance of political practices and in particular of the deliberative role of the legislature, the second, the value order conception, accentuates the moral dimension of constitutions and promotes the judiciary's role as guardian of constitutional values, and the third, the administrative order conception, emphasizes technical efficacy and the key role of the executive in promoting a governmental agenda. The article concludes by raising questions about those recent approaches that seek the elimination of constitutional silences. [ABSTRACT FROM AUTHOR]

Our purpose in this Foreword article is to revisit, update, and theoretically revise Mauro Cappelletti's path-breaking work Judicial Review in the Contemporary World. Our main cartographical device, in homage to Cappelletti, is the wave metaphor. We map three sequential and overlapping worldwide, global waves of judicial review within a constitutional order. The first wave is the series of "constitutional revolutions" within national legal orders. The second wave is the emergence of international law as the source of the higher law which courts use in their exercise of their power of judicial review. The third wave is a response and reaction to the first and second waves: one dimension of the third wave is the attempt of domestic courts to make up for the rule of law, democratic and identitarian lacunae in transnational governance (voice). Another dimension--exit--is the set of instances in which courts (and states) seek to exit the first and/or the second wave. The interplay between the waves and their dialectical features constitute the explanatory framework we offer in this article. By highlighting the dialectical relations within and between waves we hope to challenge a dominant narrative on constitutionalization processes as progressive and evolutionary. [ABSTRACT FROM AUTHOR]