The subject of this book is the social and political meaning of constitutional texts to the detriment of their legal concretization. Focusing on the discrepancy between the hypertrophically symbolic function of constitutions and their insufficient legal concretization, it offers a critical counterpoint to constitutional theory that treats constitutional texts as a panacea to solving political, legal, and social problems. In contrast to the premises of Niklas Luhmann's systems theory regarding law and constitution in world's society, symbolic constitutionalization is approached (...) here in both a comprehensive and far-reaching perspective. Chapter 1 sets out the debate about symbolic legislation. Chapter 2 explains the notion of symbolic constitutionalization as a problem embracing the whole legal system. Chapter 3 approaches the issue in terms of allopoiesis of law, characterizing it primarily as a problem in peripheral modernity and referring to the Brazilian experience. The final chapter discusses the tendency to a symbolic constitutionalization of world society in the scope of a paradoxical peripheralization of the centre. (shrink)

In recent months, pharmaceutical manufacturers have brought legal challenges to a provision of the 2022 Inflation Reduction Act (IRA) empowering the federal government to negotiate the prices Medicare pays for certain prescription medications. One key argument made in these filings is that price negotiation is a “taking” of property and violates the Takings Clause of the US Constitution. Through original case law and health policy analysis, we show that government price negotiation and even price regulation of goods and services, including (...) patented goods, are constitutional under the Takings Clause. Finding that the IRA violates the Takings Clause would radically upend settled constitutional law and jeopardize the US’s most important state and federal health care programs. (shrink)

In this paper, I argue that a constitutionalized Harm Principle could ensure that people are not jailed unless they deserve it. I do not aim to outline every possible type of bad consequence beyond harm that might be sufficiently serious to justify criminalization. Instead, I focus on criminalization that is backed up with jail terms and I argue that wrongful harm to others provides the only moral and constitutional justification for sending people to jail. Imprisonment harms the prisoner, so she (...) should not be imprisoned unless she has caused proportionate harm to others. I argue that the sufficient conditions for sending an offender to jail are: (1) that the offender's actions have (or risk) bad consequences that are sufficiently harmful to make her commensurately deserving of penal detention; and (2) that the offender culpably (that is, with a state of mind somewhere along the intentional/reckless/gross negligence continuum) chose (aimed or attempted) to bring about those bad consequences or did so with reckless indifference. The lawmaker would need to demonstrate from the ex ante perspective that proposed offenses carrying jail sentences are a proportionate and fair way of dealing with the wrongs involved. Because jail (including short sentences of a few days) involves hard treatment (seriously harmful consequences for the prisoner) harm to others would be the only bad consequence of sufficient weight to justify a jail sentence. Jailing people for wrongful behavior that has harmless consequences would be an unjust and disproportionate response. In terms of understanding imprisonment (a physical deprivation of liberty) in the United States, it is better to refer to the Eighth Amendment of the Constitution than to the Due Process Clause. The Eighth Amendment, if read morally, could be invoked to strike down laws that carry prison sentences for wrongs that do not result in harm to others. This is because harming a person by subjecting her to the hard treatment that is involved in serving a jail term would be a disproportionate response unless the wrongdoer inflicted equivalent harm on others. I argue, that the Eighth Amendment should be interpreted in a way that accords with its overall moral aim or purpose. The Amendment's overall moral aim is to ensure that the state does not inflict unjust, oppressive, or disproportional punishments on its citizens. (shrink)

Le De mundi caelestis terrestrisque constitutione liber, attribué à tort à Bède, est un texte curieux, qui, élaboré en milieu monastique au XIe ou XIIe siècle, présente peu de références scripturaires, mais renseigne sur la réception médiévale des textes scientifiques et philosophiques latins d'époque tardive.

The primary function of the European Court of Human Rights is to ensure that administrative and judicial processes in member states effectively conform to pan‐European Convention standards (‘constitutional justice’) rather than seeking to provide every deserving applicant with a remedy for a Convention violation (‘individual justice’). But, in order to do so effectively some core elements of the Convention's constitution require more deliberate articulation and more consistent application. In seeking to show how this might be achieved, this article argues that (...) three primary constitutional principles—the judicial protection of Convention rights (the ‘rights’ principle), the democratic pursuit of the public interest (the ‘democracy’ principle), and the principle of priority to rights (the ‘priority’ principle), each exercised according to the rule of law—can be distinguished from a cluster of secondary principles which support them in a variety of ways. An analysis of the Convention's key provisions shows, in particular, how the ‘priority’ principle can, and should, operate to give the Court's decisions greater coherence and constitutional authority. (shrink)

Health insurance mandates have been a component of many recent health care reform proposals. Because a federal requirement that individuals transfer money to a private party is unprecedented, a number of legal issues must be examined. This paper analyzes whether Congress can legislate a health insurance mandate and the potential legal challenges that might arise, given such a mandate. The analysis of legal challenges to health insurance mandates applies to federal individual mandates, but can also apply to a federal mandate (...) requiring employers to purchase health insurance for their employees. There are no constitutional barriers for Congress to legislate a health insurance mandate as long as the mandate is properly designed and executed, as discussed below. This paper also considers the likelihood of any change in the current judicial approach to these legal questions. (shrink)

This paper explores how a regime recognizable as a Rawlsian property-owning democracy might be enshrined constitutionally in the context of the U.S. Five specific constitutional amendments are proposed: establishing an equal right to education, establishing a guaranteed social minimum, clarifying the legitimacy of regulating corporate political speech for the sake of political equality: establishing an individual right to a share of society’s productive wealth, and assuring communities of significant size the right to remain economically viable over time. The substance and (...) reasoning behind each proposal is discussed in length, and the paper also briefly discusses why a focus on constitutional amendments may be helpful both in clarifying how a property-owning democracy might be realized in practice and in establishing clear goals for social movements motivated by the aim of establishing a more equitable distribution of wealth, power, and opportunity in the United States. (shrink)

Argues that any state that is constitutionally committed to the recognition of human rights ought to constitutionalise a right to an adequate environment. Rebuts the claim that constitutional provisions relating to the human right to an adequate environment should be made only in the form of a policy statement and not as a fundamental right. Rebuts the further claim that the right to an adequate environment should be placed with those rights of a second order – the ‘social rights’ – (...) rather than among the fundamental rights of a constitution. Problematises the distinction between fundamental and social rights, but also shows why the right to an adequate environment does not resemble a social right. (shrink)

During the sixteenth century Galen's De constitutione artis medicae enjoyed a great success: in about fifty years it received four different Latin translations and three commentaries. Certainly this is also true of other medical classical texts, but such success is surprising for a treatise which did not have a wide circulation either in the Middle Ages or in the seventeenth century and later. In fact it is preserved in its entirety in only one Greek manuscript and in a Latin translation (...) by Niccolò of Reggio, who worked mainly for King Robert I in Naples in the first half of the fourteenth century. Furthermore, in his edition of 1679 René Chartier made a mistake, which the humanistic editors of the Greek Galen had avoided. The last part of the De const, art. med. itself enjoyed a considerable fortuna as an independent tract on prognosis in the Greek and Latin manuscript tradition. The editors of the Aldine and the Basle editions knew such an excerptum, at least in the manuscript Par. gr. 2165 of the sixteenth century, and rightly decided not to print it. Chartier found it in the manuscript Par. gr. 2269 of the fifteenth or sixteenth century, and published it in the wrong belief that it was a new treatise of Galen's . He was followed by Carl Gottlob Kühn in his edition of 1821, who printed the De const, art. med. in the first volume and the De praesagitura in vol. xix.497–511. The error was not publicly detected until Kalbfleisch in 1896. (shrink)

Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat (...) the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny. (shrink)

What does it mean to treat people as equals when the legacies of feudalism, religious persecution, authoritarian and oligarchic government have shaped the landscape within which we must construct something better? This question has come to dominate much constitutional practice as well as philosophical inquiry in the past 50 years. The combination of Second Wave Feminism with the continuing struggle for racial equality in the 1970s brought into sharp relief the variety of ways in which people can be treated unequally, (...) while respecting the formalities of constitutional government. Most obviously, the content of laws can mistreat them by wrongfully assuming that they are either threats to others, or that, like children, they need to be protected from harm through paternalistic limitations on their freedom of action. Or, as those concerned with class inequality have long noted, formal equality can create legal requirements, permissions, and prohibitions whose burdens fall predictably, and often solely, on groups who are already marginalised, and most in need of state protection. (Kairys, David 1990) Above all, what these two great political movements made plain, is that a concern for group inequality and, specifically, group injustice must figure in the formulation and adjudication of individual rights, if legal protections for equality are adequately to combat the causes of inequality. Getting to grips with that challenge, it became obvious, required going beyond the familiar analyses of inequality inherited from Liberalism and Marxism, given the many different ways in which people can be equal or unequal.(Hackett and Haslanger 2006, 3 - 15) In the first part of this chapter, I will seek to illustrate these claims, by focusing on efforts to reframe the theory and practice of constitutional equality given demands for sexual and racial equality. I will then show that analytic philosophy has also come to recognise the various non-reducible dimensions of equality in ways that reinforce the claims of critical legal theory, even as philosophers highlight their disconcerting consequences. If equality has multiple irreducible dimensions, conflicts between the legitimate demands of equality are unavoidable features of law and politics, even in the best possible world, and are likely to be particularly painful when set against a background of historical injustice. The chapter concludes with the challenges to democratic constitutionalism, and the scope for constructive responses to those challenges, which the rapprochement between critical and analytic thinking on equality suggests. (shrink)

I here revisit a debate between Antonin Scalia and Ronald Dworkin concerning the constitutionality of capital punishment. As is well known, Scalia maintained that the consistency of capital punishment with the Eighth Amendment can be established on purely textualist principles; Dworkin denied this. There are, Dworkin maintained, two readings of the Eighth Amendment available to the textualist. But only on one of these readings is the constitutionality of capital punishment secured; on the other, ‘principled’, reading it is not. Moreover, breaking (...) the stalemate in favour of the former reading cannot be decided on textualist principles alone. To resolve the issue, Scalia is forced to appeal to interpretive principles he has explicitly disavowed – principles that permit us to go beyond the text and invoke the framers’ intentions. In this paper, I argue that Dworkin has misdescribed the situation: there is in fact a plausible textualist argument that favours Scalia’s reading – one that, as per its textualist credentials, makes no reference to the framers’ intentions or expectations. (shrink)

In America today, public policy governing an increasing number of social issues is made through the judicial enforcement of constitutional rights. Cruzan raised the question whether policy regarding the withdrawal of medical care from incompetent patients is to be handled similarly. This essay argues that privacy-rights doctrine provides a poor basis for constructing public policy in this area. It suggests that the Court has been unable to articulate a convincing basis for privacy rights and that the basis the Court seems (...) to assume poorly fits many circumstances to which it is applied. The essay further contends that the Court has been unable to describe a persuasive method of analyzing the state interests that are at stake in privacy cases and to accommodate those interests in a reasonable way. The essay concludes that these are issues as to which policy is better formed through a political, not judicial, process. Keywords: constitutional rights, courts, fundamental right, personal right, public policy, rights CiteULike Connotea Del.icio.us What's this? (shrink)

In his De tragoediae constitutione (1611) Heinsius rearranged the text of Aristotle's Poetics, and built on it a new general theory of drama, literature and speech. The new system was designed to render Christian exemplars and Christian theories of internalisation, pedagogy and motivation impossible to maintain, and thereby sidestep one of the most divisive issues in the intellectual debates of the Reformation. Irenicist secularisation is a major cause of Heinsius's impact on German, English and French literary theory. ☆ I would (...) like to thank Hans Blom, Cesare Cuttica, Ioannis Evrigenis, Renaud Gagné, Marketa Klicova, Isaac Nakhimovsky, Richard Whatmore and two anonymous reviewers for their comments and suggestions. Many thanks to the Leverhulme Trust for their generous support. (shrink)

This article focuses on theoretical reflections on sovereignty and constitutionalism in the context of the globalization and Europeanisation of the nation states, their politics, and legal systems. Starting from a critical assessment of the Kelsen-Schmitt polemic, the author claims that sovereignty needs to be analysed by the sociological method in order to disclose its current structural differentiation. The constitution of society may be imagined as the multitude of self-constituted and functionally differentiated social subsystems. The constitutional pluralism argument subsequently reconceptualizes sovereignty (...) as socially differentiated and divided between specific subsystems. The EU's differentiated constitutional domain and the paradox of divided sovereignty are used as examples of profound structural and semantic changes in contemporary national and transnational societies. While the sovereign nation-state institutions have become marginalized in political structures of European societies, the self-constitutionalization of the functionally differentiated EU legal system proceeds by internalizing the concept of divided sovereignty and using it semantically as its mode of self-reference. (shrink)

Under the Supreme Court's compelled speech cases, the context of government-mandated disclosures determines the standard of review. Pursuant to Casey, Zauderer, and Whalen, compelled disclosures in the medical context, such as speech-and-display ultrasound laws, are subject to – and survive – a form of rational basis scrutiny.

For years, the collection of DNA samples from individuals arrested for criminal misconduct has been advocated by police officials and endorsed by politicians. Louisiana, Virginia, California, and South Dakota have adopted laws to add DNA profiles derived from these samples to their DNA databases. Texas provides for DNA to be taken after indictment but before conviction. Although the U.S. Department of Justice initially shied away from the issue, the DNA Fingerprint Act of 20055 authorizes the collection of DNA from individuals (...) arrested for violations of certain federal criminal laws, and the inclusion in the national DNA database of all profiles from states that type DNA prior to conviction.But are these laws constitutional? In an article in a previous issue of this journal, and reprinted in this issue, Professor Tracey Maclin concludes that fidelity to precedent should lead the Supreme Court to strike down the Louisiana and Virginia laws as violations of the Fourth Amendment. (shrink)

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional (...) design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance with that regime of international law. This paper examines the case of Japan's Constitution to determine the extent to which its war-renouncing provisions incorporated, and are consistent with, international law principles on the use of armed force, and whether the provisions operated to effectively constrain government policy. It concludes that the drafters of the Constitution did incorporate international law principles from jus ad bellum in Art. 9(1), though they also grafted on sui generis prohibitions and rules from jus in bello in Art. 9(2) as well, which complicates the story. The provision was embraced in the ratification process, and became the source of powerful constitutive norms that have helped shape Japan's sense of identity. The paper examines the interpretation of Art. 9, as informed by international law, and concludes that despite deep conflicts over competing narratives and understandings of the provision, the long-standing government interpretation of the provision is consistent with Japan's obligations under the jus ad bellum regime. In looking at the operation of Art. 9, the paper finds that despite the early use of Art. 9 by governments as a pretext behind which it could pursue desired policy objectives, the provision did operate to effectively constrain government policy in times of apparent crisis. During the Gulf War in particular, Art. 9 effectively bound a straining government to the mast, preventing Japan's participation in the war. It did so not only in its operation as a legal norm, effectively enforced by the Cabinet Legislation Bureau, but also as a powerful constitutive and social norm. As such, the experience of Japan with Art. 9 provides support for the argument that it is feasible to incorporate principles of jus ad bellum into national constitutions, so as to effectively constrain government policy with respect to engaging in armed conflict. Broader arguments as to why that might be desirable, or whether it has served Japan well or ill, are left for another day. (shrink)

The Law has always been an instrument to exorcise different kinds of fear, primarily the fear of differences, through the distribution of shares of power. Perhaps, this system, inherently conflictual, is behind the failure of the multicultural policies of many countries, that have divided the society in as many separate communities as are the elements that differentiate each human being. The Law has also recognized to men a total power over Nature, feeding its illusion of control, that in recent decades (...) has shattered in front of several natural disasters. Ecuador, Buthan and South Africa have introduced in their Constitutions ideas belonging to the indigenous cultural tradition (buen vivir, buddhism and ubuntu), which express harmony between men and Nature. The paper analyzes these experiences in order to propose a new model of eco-friendly constitutionalism. (shrink)

The ruling of the Constitutional Court of 10 September 2009 which repealed the proclaimed early elections to the Chamber of Deputies because of their alleged unconstitutionality fully manifests unjustifiability of the interference by the Constitutional Court of the Czech Republic. The decision directly interfered with the process of democratic re-establishment of the Chamber of Deputies. At the same time, the Court´s intervention was only made possible by violating a number of constitutionally prescribed rules. Finally, the respective ruling could not be (...) issued without a “creative approach” on the part of the Constitutional Court towards the rules governing procedures before the Court. The approach eventually resulted in the violation of principles of fair trial – before a body that should guarantee them. The paper analyses in detail various individual aspects of the case, from general issues of the division of power and contents of the mandate of deputies to individual procedural stages before the Constitutional Court. (shrink)