Recent scholarship has highlighted the theoretical possibility and examples of the tools of constitutional change being used “abusively,“ in order to erode the democratic order. This chapter will explore the experience of constitutional backsliding in Colombia, and the response to those efforts by the Colombian Constitutional Court and other political actors. The chapter will explain...
Constitutional Beginnings
A significant strand within constitutional thought treats constitutions as foundational events, marking the point at which a new state and/or constitutional order comes into existence. For Schmitt, a constitution is valid because it derives from the will of a constitution-making power or authority; the word ‘will’ denotes an actually existing power as the origin of...
Constitutional Capture and “Illiberal Democracy“: The Case of Poland
In my paper I intend to use the Polish case study to reflect upon the relationship between populism and democracy. A widespread view that populism is a democratic response to liberal excesses will be the main target of my criticism. I will argue that, at least as far as constitutional capture in Poland is concerned,...
Constitutional Deliberation in the Legislative Process
This paper considers how constitutional norms structure legislative deliberation. Its authors argue that the fact that legislators are ‘“responsible constitutional actors“ places them under an obligation … to deliberate about … constitutional rules when deciding whether to pass legislation‘. However, a complication is that some such rules are not judicially enforceable and may also be...
Constitutional Culture and Democracy in Mexico: A Critical View of the 100-Year-Old Mexican Constitution
This year the Mexican Constitution turns 100 years old. The centenary could make us think that in Mexico we have a strong constitutional culture. However, this assumption is wrong, since the strength of a constitutional culture does not depends on the longevity of the Constitution. Constitutional culture is an open and incomplete project of learning,...
Constitutional History and Constitutional Migration: Nepal
This chapter examines the uneasy relationship between indigenous constitutionalism and global norms in the specific jurisdictional context of Nepal, which is unusual within South Asia for having escaped colonialism and having a wealth of uninterrupted local tradition and custom on which to construct its constitutional system. This unusual level of historical continuity in the process...
Constitutional identity in the European Union
In the supranational legal order of the European Union it is of growing importance to keep intact the member States “constitutional identities“. This is clearly expressed, as a basic principle, by article 4 EU Treaty. The European Union as a community of States needs to respect the identities of its members. The concept of a...
Constitutional identity in the jurisprudence of the Court of Justice and of Constitutional Courts
The European Union aspires to the primacy of its entire normative production over the entire law of the Member States. On the other hand, Member States remain inflexible about the ultimate superiority of their Constitutions over any other right. The constitutional jurisdictions of States even seem to be coalescing in order to impose their respective...
Constitutional Review without Constitutionalism? Prospects and Limitations of a Constitutional Review Mechanism in China
The Chinese Communist Party has decided to “strengthen oversight to ensure compliance with the Constitution“, and, for the first time, “advance constitutionality review“. However, “constitutionalism“ has been branded “western“, “capitalistic“, and even become a taboo since 2012. The paper summarizes the recent official blueprint and scholarly proposals, trying to envisage the future picture of the...
Frozen Trials: Political Victims and Their Quest for Justice
Before Martial Law was lifted in 1987, the Legislative Yuan passed the National Security Act prohibiting civilian cases tried in court martial from appealing to ordinary courts. In 1991, the Constitutional Court affirmed this legislation in its notorious J.Y. Interpretation No. 272, indicating that this was a very exceptional case, since the imposition of martial...