|Woodrow Wilson School
WWS 704 Independent Study (Reading Course): Comparative Constitutional Law
Instructor: Gábor Halmai, Visiting Research Scholar
Program in Law and Public Affairs (LAPA)
A. Course Overview
Comparative constitutional law compares the constitutional law of more than one country/nation/state. In many countries in the world, constitutional law has become a booming, ambitious, politically alive field, through which courts with constitutional jurisdiction have become aggressive players in new forms of politics. We are witnessing (as various authors call it) the “the rise of world constitutionalism,”1 “the inevitable globalization of constitutional law,”2 “migration of constitutional ideas,”3 “constitutional engagement in a transnational era,”4 “global expansion of judicial power,”5 “governing with judges,”6 or simply the creation of “courtocracies.”7 Comparative constitutional law is where much of the political and legal action is these days – at least when one looks outside the United States.
Apart from its inherent interest, comparative constitutional law is important to study for another reason. It is hard to understand many important political transformations in the world without understanding the role of new constitutions and newly aggressive judicial review as critical elements of the changes. The development of new forms of constitutional law has been critical in the “transitions” of post-communist states to democratic and economically liberal regimes (e.g. Hungary, Poland, Slovenia, Bulgaria), in the integration of Europe (in both the European Union and in the Council of Europe), in the secularization of politics in potentially religious states (e.g. Israel, Turkey, India), in the maintenance of rights-respecting federal democracies in the face of regime-challenging pluralism (e.g. Spain, Russia, Canada), in the peaceful transformation of minority governments into more broadly based democracies (e.g. South Africa) and in the stunning transformation in the range of legally enforceable rights around the world (almost everywhere that functioning constitutions exist).
The course readings will focus on three core areas: 1) the allocation of constitutional powers; 2) the rights provisions in national constitutions; and 3) contemporary themes concerning the intersection of international law, transitional justice and comparative constitutionalism.
Allocation of constitutional powers. Much of what a constitution does is to both create and constrain political power. A constitution creates political power by constituting offices with capacities to act within the constitutional framework. A constitution constrains political power by setting limits to the capacities of each office. Generally, constitutions achieve both the creation and constraint of power by setting up a competition for it among different parts of a government. As we go through the course, we will look at the construction of and interplay between a country’s executive, legislative and judicial power, as well as between the national government and regional governments and between the national government and the transnational legal context. A constitution tells us a plan for how power can be brought under constraint of law.
Rights. Apart from their inherent importance, there are other reasons to pay special attention to human rights questions in a course on comparative constitutional law. First, it is in the area of rights jurisprudence that constitutional courts have come into their own. If we are going to be focusing on courts in the post-war period, then rights constitute the main area in which courts have been especially active. By focusing on rights, we see courts at their most self-confident and popular moments. Second, the jurisprudence of rights is an area where courts in different countries are most likely to look to each other for support. While the political structures of a country are likely to be unique both in their composition and in their relationship to particular national histories, rights have a claim to universality. It is the rare court that thinks of rights as being something that belong only in one country and in no other, or that have a special pedigree in one place while lacking a basis for it elsewhere. Because rights have nearly universal ambition, at least in the views of their leading advocates, rights cases are most likely to reach outside the jurisdiction of the particular country in which the court sits to make use of similar cases resolved elsewhere. The South African Constitutional Court, for example, cited the Hungarian Constitutional Court’s decision on the death penalty, and the Hungarian Court cited the German Constitutional Court’s decisions on hate speech. When one looks at the rights decisions of high courts, one is most likely to see the emergence of a common constitutional culture that is bridging liberal constitutional democracies that have otherwise very different histories. And this term, we will be focusing on the development of that common constitutional law especially.
Contemporary themes. (1) From the time of the establishment of a new international legal order in the aftermath of the Second World War, huge progress has been made in internationalizing both tangible human rights and norms of justice. As a result, law and justice have been at the forefront of responses to both internal and international armed conflict – creating a new discipline of ‘transitional justice’ that includes international bodies with competence to prosecute and punish the most serious cases of war crimes, crimes against humanity and genocide. Thus, the past two decades have witnessed the emergence of a wide range of institutions such as the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC). (2) At the same time as these institutions have emerged, the so-called ‘war on terror’ not only has changed the nature of global security but also has created pressure on the laws that limit state action inter alia in the realms of military, intelligence-gathering and counter-terrorism affairs. Developments in both of these areas – transitional justice and the war on terror – can helpfully be assessed by using the tools of comparative constitutional law. As well as dealing with these contemporary themes during the final part of the course, throughout the whole of the course, reference where possible will me made to the particular role of comparative constitutional law in relation to these themes.
To remain consistent with Kim Scheppele’s and Gabor Halmai’s Comparative Constitutional Law Course, which has been offered in previous years, the faculty advisor’s evaluation of the course will be based upon the midterm and final paper assignments.
In order to ensure the best possible paper at the end of the course, the instructor and student will meet to discuss the assignments as follows:
Wednesdays, 5, 19 February 2013, 5 March 2013 and 23 April 2013 or otherwise as agreed, to discuss:
The draft midterm;
The draft final assignment.
In addition, the instructor and student will agree on regular times to discuss the readings throughout the Spring semester.
Midterm paper assignment Due Date: Midnight, Friday, 14 March 2013
Final Assignment Due Date: Midnight, Tuesday, 13 May 2013
By email attachment to firstname.lastname@example.org
Midterm Paper Assignment
A five-page paper with an attached sample bibliography that addresses the following:
What is your research question?
What materials (data) will you use to answer this question? (e.g., you might use legal cases, archives, interviews, secondary literatures, case studies, classic works of political theory, etc.)
How is this question connected to comparative constitutional law?
What course materials that we have covered so far (or that you see coming in the future on the syllabus) are relevant to your paper?
What are some sample items that will appear in your bibliography? (At this point, please list 10 articles or books on your topic.)
Final Paper Assignment
The final assignment is an essay of at least 25 pages (double-spaced) of publishable quality that addresses a topic related to the materials covered in this reading course.
C. Working Draft Syllabus (This May Be Amended With The Instructor’s Permission)
(1) Introduction and (2) the American Controversy Over Comparative Constitutional Law
S.E. Finer, Vernon Bogdanor and Bernard Rudden, “On Whether Constitutions Matter” and “On the Variety Among Constitutions.” Pp. 1-39 in Comparing Constitutions (Oxford University Press, 1995).
Dorsen et al., Comparative Constitutionalism: Cases and Maetrials (2nd Ed.) (Thompson Reuters, 2010), Chapter 1: What is a Constitution. Pp. 1-138.
Remarks by Sandra Day O’Connor, Southern Center for International Studies, Atlanta, GE. November 28, 2003.
Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and
Stephen Breyer – American University’s Washington College of Law, January 13, 2005
Bruce Ackerman, The Rise of World Constitutionalism, 83 Va. L. Rev. 771 (1997).
Kim Lane Scheppele, The Agendas of Comparative Constitutionalism, 13(2) Law and Courts 5-22 (2003).
Relatively up-to-date translations of many of the world’s constitutions into English can be found at the International Constitutional Law website at http://www.oefre.unibe.ch/law/icl/index.html .
John O. McGinnis, Foreign to Our Constitution, 100 Nw. U.L. Rev. 303 (2006).
Robert J. Delahunty and John Yoo, Against Foreign Law, 29 Harv. J.L. & Pub. Pol'y 291 (2005).
Anne-Marie Slaughter, Judicial Globalization, 40 Va. J. Int'l L. 1103 (2000).
Ken Kersch, The New Legal Transnationalism, The Globalized Judiciary, and the Rule of Law, 4 Wash. U. Global Stud. L. Rev. 345 (2005).
Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, 15(5) The European Journal of International Law (2004).
Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale L.J. 1225 (1999).
Diane Marie Amann, “Raise the Flag and Let it Talk”: On the Use of External Norms in Constitutional Decision-Making. 2(4) I-Con: International Journal of Constitutional Law 597 (2004).
Gábor Halmai, The Use of Foreign Law in Constitutional Interpretation, in Oxford Handbook on Comparative Constitutional Law, OUP (2012).
Part I: Structures
(1) Constitution-Making and Constitutional Amendment and (2) Presidentialism and parliamentarism
Germany: Privacy of Communications Case (The Klass Case), Federal Constitutional Court
South Africa: Certification of the Constitution of the Republic of South Africa, Constitutional Court
France: On Constitutional Amendment Adopted by Referendum, Constitutional Council
India: Kesavananda Bharati v. State of Kerala, Supreme Court
Hungary: Decision 61/2010 AB, Constitutional Court, see Gábor Halmai, Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the Constitution? Constellations, 2012. forthcoming
Richard Albert, The Fusion of Presidentialism and Parliamentarism from the American Journal of Comparative Law 2009.
Germany: Parliamentary Dissolution Case, Federal Constitutional Court
Pakistan: Muhammad Nawaz Sharif v. Federation of Pakistan, Supreme Court
Poland: Decision 2/1995, Constitutional Tribunal
Hungary: Decision 48/1991 AB, Constitutional Court
US: Marbury vs. Madison, US Supreme Court
European Model of Constitutional Review: Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press, 2000), 31-60., Wojciech Sadurski: Twenty Years After the Transition: Constitutional Review in Central and Eastern Europe, Sydney Law School, Legal Studies Research Paper No. 09/69, 2009, http://ssrn.com/abstract=1437843
Germany: Federal Constitutional Court, in Kommers-Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd Ed. (Duke University Press, 2012.)
France: Federico Fabbrini, Kelsen in Paris: France’s Constitutional Reform and the Introduction of A Posteriori Constitutional Review of Legislation, German Law Journal, 2008/9, 1297-1312. http://www.germanlawjournal.com/pdfs/Vol09No10/PDF_Vol_09_No_10_1297-1312_Articles_Fabbrini.pdf
Izrael: United Mizrahi Bank Ltd. V. Migdal Village, Supreme Court
Hungary: Gábor Halmai, The Hungarian Approach of Constitutional Review, in Wojciech Sadurski (ed.), Constitutional Justice, East and West, Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective. Kluwer International, The Hague – London – New York, 2002. 189-211.
India: Lloyd I. Rudolph and Susanne Hoeber Rudolph, In Pursuit of Lakshmi. The Political Economy of the Indian State (1987), The University of Chicago Press. 103-124.
UK: Colm O’cinneide, The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution.’ Institute for Human Rights Working Paper.
Weeks 4 & 5
(1) Transnationalism and Constitutionalism: The Case of the European Union
Pavlos Elefheriadis, The Idea of a European Constitution
Giorgia Maganza, The Lisbon Treaty: A Brief Outline
Germany: Maastricht Treaty Case, Federal Constitutional Court
Germany: Lisbon Treaty Case, Federal Constitutional Court
France: Maastricht I Decision, Constitutional Council
France: Treaty of Amsterdam Decision, Constitutional Council
European Court of Justice: Costa v. ENEL
(2) International Law in Domestic Courts
Gábor Halmai, Domestic Courts and International Human Rights, in SAGE Handbook of Human Rights (forthcoming 2014)
Maximo Langer, The Diplomacy of Universal Jurisdiction
Stephen Macedo (ed.), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law, University of Pennsylvania Press (2004)
Part II: Rights
In the second part of the course, we will take up specific human rights themes and examine the way that our target countries and their high courts have dealt with these topics.
Right to Life and Human Dignity:
Weeks 6 & 7
Kim Lane Scheppele, "Constitutionalizing Abortion."
US: Roe v. Wade, U.S. SC (1973),
US: Planned Parenthood v. Casey, U.S. SC (1992)
Germany: Abortion Case I and Abortion Case II, Federal Constitutional Court, pp. 335-356 in Donald Kommers, excerpts translated Chapter 7 (on Dignity and Liberty).
Canada: R. v. Morgentaler, Supreme Court of Canada , 1 S.C.R. 30.
Ireland: The Attorney General, Plaintiff v X and Others, Defendants [1992 No 846P].
Hungary: Decision 48/1998. AB, Constitutional Court
US: Gregg v. Georgia, U.S. SC (1976),
US: Roper v. Simmons, U.S. SC (2005)
South Africa: The State v. Makwanyane, Constitutional Court Case CCT/3/94.
Germany: The Life Imprisonment Case, Federal Constitutional Court, pp. 306-313 in Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany.
Hungary: Decision 23/1990 On Capital Punishment (with Sólyom concurrence) in László Sólyom and Georg Brunner, Constitutional Judiciary in a New Democracy, pp. 118-138.
See http://justice.uaa.alaska.edu/death/history.html for a history of US developments concerning the death penalty
ISRAEL: Public Committee Against Torture v. State of Israel, H.C. 5100/94 (Israel 1999). Edited.
ECtHR: Gäfgen v. Germany. Edited.
US: Memo, 1 August 2002, Interrogation of an Al Qaeda operative.
UK: A v. Secretary of State for the Home Department (#2) (2005) (Torture case). Edited. European Court of Human Rights: Ireland v. UK, (App. no. 5310/71), (1980) 2 EHRR 25,  ECHR 5310/7, 18 January 1978.
Free Speech and Its Edges
(1) Free Speech
US: New York Times Co. v. Sullivan, U.S. SC (1964)
Germany. Lüth Case, Federal Constitutional Court
Hungary: Decision 36/1994 AB, Constitutional Court
European Court of Human Rights: Lingens v. Austria (1986)
(2) Falsehoods, Hate and Insult
US: Gitlow v. New York, U.S. SC
Germany: Holocaust Denial Case and Tucholsky Case from Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, pp. 382-395.
Hungary: Decision 30/1992 on the Freedom of Expression from László Sólyom and Georg Brunner, Constitutional Judiciary in a New Democracy, pp. 229-238.
European Court of Human Rights: Jersild v. Denmark
UN Human Rights Commission: Faurisson v. France
(3) Informational Rights: Data Protection and Freedom of Information
Kommers-Miller, Chapter 7 on Dignity: the Census Act Case (pp. 863-869), and the "Post-9/11 and the Jurisprudence of Informational Self-Determination" part (pp. 876-881).
Germany: Privacy of Communication Case (Klass Case), Federal Constitutional Court
Hungary: Decision 15/1991 AB, Constittutional Court
Czech Republic: Lustration Case, Constitutional Court
Hungary: Decision 60/1994 AB, Constitutional Court
European Court of Human Rights: TASZ v. Hungary
(1) Sexual Orientation: Gay Rights
Hungary: Decision 14/1995: On the Legal Equality of Same-Sex Partnerships from László Sólyom and Georg Brunner, Constitutional Judiciary in a New Democracy, pp. 316-321.
South Africa: Minister of Home Affairs and Another v Fourie and Others; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others, CCT 60/04, CCT 10/05, 2006 (3) BCLR 355 (CC), 2005 SACLR LEXIS 34.
Canada: Reference re Same-Sex Marriage,  3 S.C.R. 698, 2004 SCC 79.
European Court of Human Rights: In the case of X, Y and Z v. the United Kingdom, Case number 21830/93, decided 22/04/1997.
(2) Social Rights
Kim Lane Scheppele, Social Rights in Constitutional Courts: Strategies of Articulation and Strategies of Enforcement, Working Paper.
Indian Public Interest Litigation summarized in M.P. Jain, “The Supreme Court and Fundamental Rights.” pp. 1-100 in S.K. Verma Kusum (ed.), Fifty Years of the Supreme Court of India: Its Grasp and Reach (Oxford University Press, 2001) pp. 76-86
Hungary: Decision 43/1995 On Social Security Benefits, from László Sólyom and Georg Brunner, Constitutional Judiciary in a New Democracy, pp. 322-332.
South Africa: Government of the Republic of South Africa v. Grootboom, 2001 (1) SALR 46, 63-64 (CC).
South Africa: Treatment Action Campaign (TAC) v. Minister of Health, 2002 (4) BCLR 356 (T), 2001 SACLR LEXIS 123.
Militant Democracy: Freedom of Expression, Assembly, Association
Karl Loewenstein, Militant Democracy and Fundamental Rights I-II. The American Political Science Review, Vol. XXXI. June, 1937, No. 3.
Stephen Holmes, Bookreview on András Sajó (ed.), Militant Democracy, ICON, July 2006, 4 (3)
András Sajó, From Militant Democracy to the Preventive State, 27 Cardozo Law Review, 2005-2006.
Germany: Socialist Reich Party Case, Federal Constitutional Court
European Court of Human Rights: Rekvényi v. Hungary
European Court of Human Rights: Vajnai v. Hungary
European Court of Human Rights: Bukta v. Hungary
European Court of Human Rights: Refah Partisi v. Turkey
Part III: Contemporary Themes
In the third part of the course, we will consider the contemporary themes of the war on terror and transitional justice using the tools of comparative constitutional law.
The War on Terror
(1) Emergency Measures and their Constitutionality
Kim Lane Scheppele, Global Security Law and the Challenge to Constitutionalism after 9/11,  Public Law 352-376 (2011).
Russell Miller, Balancing Liberty and Security in Germany, 4 Journal of National Security Law and Policy 369-396.
Kim Lane Scheppele, The New Judicial Deference, 92 Boston University Law Review 89-170 (2012). Read only pages 89-96 and pages 108-155. This summarizes what the US Supreme Court did in the “war on terror.”
(2) Shooting down Hijacked Aircraft
Germany: Authorisation to shoot down aircraft in the Aviation Security Act void, BVerfG, 1 BvR 357/05 (2 February 2006, Decision of the Federal Constitutional Court, available at http://www.bundesverfassungsgericht.de/en/decisions/rs20060215_1bvr035705en.html .
(3) Military Commissions
UK: R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, Decision of the Queen’s Bench Division, Divisional Court  EWHC 2048 (Admin),  All ER (D) 123 (Aug).
(4) Indefinite Detention
UK: R (on the application of Abbasi and another) v Secretary of State for Foreign and Commonwealth Affairs and another, Court of Appeal, Civil Division,  EWCA Civ 1598,  All ER (D) 70 (Nov).
Canada: Charkaoui v. Minister of the Citizenship and Immigration, Supreme Court of Canada, 2007 SCC 9;  S.C.J. No. 9, February 23, 2007
(5) Asset Freezes
European Court of Justice: Kadi and al Barakaat v. Council of the European Union, JUDGMENT OF THE COURT (Grand Chamber) 3 September 2008, In Joined Cases C-402/05 P and C-415/05 P, available at http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Rechercher$docrequire=alldocs&numaff=C-415/05%20P&datefs=&datefe=&nomusuel=&domaine=&mots=&resmax=100 (September 2008).
Comparative constitutional law, transitional justice and the ICC
Ruti Teitel, Transitional justice and the transformation of constitutionalism, in Comparative Constitutional Law Handbook (ed. Rosalind Dixon and Tom Ginsburg, Edward Elgar 2011)
Juan E. Méndez, Constitutionalism and Transitional Justice, in Rosenfeld and Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law, OUP (2012)
Lee A. Casey, The Case Against the International Criminal Court, Fordham International Law Journal, Vol. 25, Issue 3 (2001)
Theresa Reinold, Constitutionalization? Whose constitutionalization? Afrtica’s ambivalent engagement with the international Criminal Court, Int J Constitutional Law (2012) 10 (4): 1076-1105
Claus Kress et al., The Rome Statute and Domestic Legal Orders, Volume I: General aspects and Constitutional Issues; Volume II: Constitutional Issues, Cooperation and Enforcement
Xavier Philippe, The principles of universal jurisdiction and complementarity: how do the two principles intermesh? International Review of the Red Cross, Vo. 88, No. 862 (June 2006)
Gathungu v. Attorney General and Another, Kenya High Court, 23 November 2010 (http://www.tandfonline.com/doi/pdf/10.1080/03050718.2012.674741)
Rome Statute, ICC
Neil J. Kritz, The Dilemmas of Transitional Justice, in Kritz (ed.), Transitional Justice. How Emerging Democracies Reckon with Former Regimes. Vol. I. General Considerations. US Institute of Peace Press, Washington, DC (1995)
Gàbor Halmai and Kim Lane Scheppele, Living Well Is the Best Revenge: The Hungarian Approach to Judging the Past, in A. James McAdams (ed.), Transitional Justice and Rule of Law in New Democracies, University of Notre-Dame Press (1997)
Decision of the Constitutional Court of the Czech and Slovak Federal Republic on the Screening Law. November 26, 1992. English translation in Kritz (ed.) III Transitional Justice, pp. 346-365
Decision 11/1992 III.10) AB of the Hungarian Constitutional Court on retroactive justice. English translation in Dorsen-Rosenfeld-Sajó-Baer, Comparative Constitutionalism. Cases and Materials, West (2010). Pp. 49-55
Decision 60/1994. (XII. 24). AB of the Hungarian Constitutional Court on lustration. English translation in Làsló Sólyom and Georg Brunner, Constitutional Judiciary in a New Democracy. The Hungarian Constitutional Court, The University of Michigan Press, Ann Arbor (2000). Pp. 306-315