How to (re)shape the polity? Values and principles in constitutional and administrative law
Panel formed with individual proposals.
Against the backdrop of the current debate on “unconstitutional constitutional amendments“ and implicit entrenchment, John Rawls's defense, in Political Liberalism, of the implicit unamendability of the First Amendment of the Constitution of the United States is reconstructed. Classed as a “teleological“ subtype of the “coherence-approaches“ to implicit unamendability, Rawls's argument is then compared with other frameworks (mainly the “principal-delegate“ approach) and its consistence with the paradigm of political liberalism is assessed. Finally, an ameliorative version of Rawls's case for the implicit entrenchment of constitutional essentials is argued to avoid intra-paradigmatic tensions by drawing on the notion of trans-temporal, “vertical“ reciprocity among generations of citizens, and a “liberal principle of amending legitimacy“ is put forward.
Law and Leviathan (L&L) by Sunstein and Vermeule has attracted much scholarly attention these days. In a recent ‘IberICONnect‘ forum aimed at discussing the views on the book, researchers suggested that the argument for an internal morality of administrative law (IMAL) could not reach Ibero-american and European legal systems, where such principles are already recognized in written Constitutions. I want to argue against this interpretation of L&L and suggest that the idea behind IMAL has great importance, especially in the Latin American world, where rulemaking powers of the Administration remain a controversial feature. I argue further that a correct understanding of L&L draws not only from Fuller's idea of an internal morality of law, but also from Dworkin's integrity (as seen in Vermeule's case for ‘law‘s abnegation‘), and this ultimately leads to an idea of “administrative integrity“ and “prudence“ that is vital for the legitimacy of the rulemaking powers of the Administration.
This paper picks up the critique of amendment-metrics by Contiades and Fotiadou (2017) and presents a fresh amendment-rate-dataset for the Indian Constitution (104 constitutional amendments across 70 years). Leaving aside problems of causal inference and leximetrics (Tsebelis 2021), my paper is limited to the measurement of observable textual details and patterns (e.g., which articles of the constitutional text are changed, how many words/characters are added or deleted, whether an article is amended once or repetitively). The paper then explores empirical (taxonomies) as well as conceptual (typologies) approaches to the problem of classification of constitutional amendments. While limited to India, the paper presents expository examples that are relevant to the study of constitutional change in general — it also suggests that the ambitious promises of theories of constitutional change often go unfulfilled because classification obstacles are not taken seriously.
The constant changes in the Brazilian constitutional text in contradiction with the will of the constitution end up weakening its normative-legal character. Especially in countries like Brazil, which has a super complex and multifaceted social environment, the constitutions lack operational autonomy, filled with programmatic norms and a high degree of abstraction. In view of this, a political practice that belittles the normative force of the constitution by the state agents, especially those imbued with the power of reform, added to the deficiency of the fundamental institutions of the state and an adverse social context, the political-symbolic of the constitution ends up being overloaded due to the depreciation of the normative-legal function. As a result, the portion of the subintegrated society can join the anti-establishment narrative of the illiberals and call for a new constitutional order of authoritarian bias.
Entrenchment is a fundamental element of constitutional law and an issue in continuing dispute in democratic politics. As such, unamendable constitutional clauses, as the ultimate act of entrenchment, have been the focus of a growing literature in constitutional theory, constitutional law and political science. Nevertheless, because these different fields have different concerns, our understanding of their meaning and institutional reality is yet somewhat fragmented. I aim at integrating insights from the sociological analysis of their legitimacy, with a framework that considers judicial empowerment through the lenses of constitutional governance, to provide a better understanding of the relationship between why political actors choose to entrench their political preferences as unamendable constitutional clauses, and how the legitimacy of such acts of entrenchment is understood in these constitutional systems.