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Constitutional Law

Summary and Keywords

Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system.

Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.

Keywords: democracy, constitution, fundamental rights, bill of rights, human rights, organization, legal system, powers, freedom, equality, supreme court, nation, interpretation, rule of law

Distinctive Features

Research issues and debates about constitutional law are structured by what we understand to be “constitutional” in contemporary law. In the most encompassing sense, constitutional law is the body of rules, values, and principles defining a state. It is typically identified by the seven features outlined in the following paragraphs (Dreier, 2014): It is enshrined in a unified document and thereby constitutional in the formal sense (1). The normativity of constitutional law rests on the constituent power of the people united as a nation (pouvoir constituant, “We, the People …”) (2). Constitutional law takes precedence over all other legal precepts, thereby resulting in a minimum of hierarchical order among the norms of a legal system (3). By specific procedures within constitutional law, the constitution-changing power is established, typically resulting in a framework that is both more dynamic than multilateral treaties and more stable than other legal precepts (4). For the legislative, executive, and adjudicative state functions, constitutional law defines separate institutions that are, in principle, independent of each other while being embedded in a system of checks and balances (5). Constitutional law also establishes the legally binding force for the aspirations to human rights, democracy, and the rule of law (6). Finally, most countries now feature a constitutional court that has the task of upholding and developing constitutional law (7).

Contemporary research on constitutional law has overcome many of the issues troubling constitutional scholars in early modernity. Discussions about the unconstitutionality of slavery (Spooner, 1860) have become obsolete. The pre-political right to human dignity is now universally acknowledged. While phenomena of colonization are still somewhat relevant today, their strongest impact on research has been during the decolonization period of the 1960s (Krüger, 1968). The wave of new constitutions in Central and Eastern Europe has by now, a quarter century after the fall of the Berlin Wall, consolidated into a solid pattern of continental constitutionalism. Even on the global level, constitutional convergence can be observed (Law, 2014). Constitutions become more and more similar with only a few influential “generic” constitutions forming these patterns (Law & Versteeg, 2012). Contemporary constitutional research therefore focuses on details, for instance, the difference between a constitutional court versus a supreme court approach (Garlicki, 2007; Tschentscher & Lehner, 2013), the countermajoritarian effects of extensive judicial review (Law, 2009), or the facilitation of constitutional change by procedures of transitional justice (Teitel, 2003).

Formal Constitutional Law

Constitutional law in the formal sense is the law enshrined in a written constitution. With the notable exception of Great Britain, all countries now have written constitutions. Even Britain’s unwritten constitution relies on legal traditions rooted in written documents like the Bill of Rights (1689). Therefore, some scholars prefer the term “codified” in the case of constitutional law that is assembled in a single constitutional document (Barendt, 1998). Most countries rely on such a codified or unified constitution. There are, however, some states whose constitution consists of more than one written document. Most famously, Sweden features an un-codified multidocumentary constitution consisting of four fundamental laws that take precedence over all other laws: The Instrument of Government, The Act of Succession, The Freedom of the Press Act, and The Fundamental Law on Freedom of Expression. Israel, Canada, and New Zealand are other examples of countries with constitutional law distributed over a number of written documents with constitutional status, most often called “Basic Laws.” Furthermore, countries with a unified constitution often have some constitutional law outside of that constitution (e.g., Austria).

Formalization of constitutional law results in separating its normative claims from the empirical reality of the State. One research issue caused by this is the necessity to distinguish de jure provisions from de facto properties. Judicial independence, for example, might be captured by a number of de jure indicators (appointment procedure, length of tenure, security of salaries, etc.), while still being distinct from de facto measures (effective average term length, informal threats, etc.) (Feld & Voigt, 2003). In the context of comparative constitutionalism, this distinction is evident in the phenomenon of “symbolic” constitutionalism. While symbolism can have some power in itself (Corwin, 1936; Lerner, 1937), it does not meet the expectation of a “living” constitution where real-world implementation actually matches the normative ideal. Recent research has questioned the effectiveness of constitutional provisions about fundamental rights. While de jure guarantees of organizational freedom (right to unionize, right to form political parties) lead to increased de facto protection, other individual right guarantees do not necessarily show this effect (Chilton & Versteeg, 2016).

Another issue deriving from formalization concerns the relationship between state and constitution. In Kelsen’s legal positivism, the state is constituted by the constitution: It is no more than the sum of the legal rules (Kelsen, 1925). Accordingly, there is no pre-political “essence” of the state and no reason to use “the state” as an argument in debates about legitimacy (Möllers, 2000). This contrasts with Jellinek’s definition of a state by the empirical three-factor test (territory, people, power) that is still prevalent in public international law and does not rely on a recourse to constitutional law (Jellinek, 1900).

Constituent Power of the People

The normativity of constitutional law rests on the constituent (constitution-giving) power of the people united as a nation (Tushnet, 2014). In the American Revolution this was expressed by the phrase “We, the People …” During the French Revolution the constituent power of the people was recognized in its pre-political property as pouvoir constituant versus the post-political pouvoirs constitués that were established by the Constitution (Sieyès, 1789). The constituent power of the people straddles the domains of political theory and law. It is legal in being referenced by the constitution, but it is also extra-legal in its existence prior to the constitution and to the legal system based on that constitution. Whenever the constituent power is activated, the lifespan of the old constitution ends and a new one begins. Not to activate it, therefore, is an indicator for greater “endurance” of constitutional law (Ginsburg, 2011). The most enduring constitution is the one of the United States of America (1789), followed by Norway (1814), Belgium (1831), and the Netherlands (1848). Comparisons are difficult, however, since new constitutions can strongly rely on provisions in preceding ones. The Swiss Constitution of 2000, for example, basically renewed the provisions of the 1874 constitution that, in turn, kept the organizational structure of the 1848 constitution. Similarly, the German Basic Law of 1949 implemented many features of the failed 1848 constitution and revived others from the 1919 constitution.

Within legal research, there is controversy about the status of poivoir constituant as a relevant factor of legitimizing political government. While most accept the dual nature (“Grenzbegriff”) of pouvoir constituant in constitutional law as both legal and political (Böckenförde, 1986), some scholars remain skeptical toward such an unspecific status. Isensee, in particular, characterizes the constituent power of the people as a “democratic myth” that has become obsolete, being neither normatively relevant in law nor historically true in fact (Isensee, 1995).

Precedence of Constitutional Law Over Other Law

Constitutional law takes precedence over all other legal precepts, thereby resulting in a minimum of hierarchical order among the norms of a legal system. This supremacy of constitutional law is part of its very character, because a constitution can fulfill its promise only if all state powers, including the legislator, at least in principle submit to its precepts (Grimm, 2012). The proper means to ensure the supremacy of constitutional law over all infra-constitutional legal norms is establishing a constitutional court (see “Constitutional Courts and Judicial Review” below). Such a court is empowered with judicial review of laws adopted by parliament (statutes) or by the executive (ordinances). In its completely empowered form, a constitutional court holds the monopoly on invalidating infra-constitutional legal norms (Stone Sweet, 2012).

Constitutional Amendment and Stability of Constitutional Law

By specific procedures within constitutional law, the constitution-changing power is established, typically resulting in a framework that is both more dynamic than multilateral treaties and more stable than other legal precepts. Formal provisions about amendments often require some kind of qualified majority for changing the constitution, for example, a two-thirds majority in parliament (Kaltenborn, 2012). Some countries acknowledge the greater importance of constitutional change over other changes in the law by submitting every constitutional amendment to a vote by the people (obligatory referendum, e.g., in Switzerland). Both supermajority requirements and procedural hurdles tend to decrease the actual amount of amendments (Lutz, 1995). There is, however, no context-independent rate of amendments per year that can be acknowledged as ideal for all states. The Constitution of the United States, for example, has the most rigid amendment procedures resulting in a very low rate of amendments, but it is nevertheless the most enduring constitution in the world and continues to inspire the nation as its founding document.

Striving for a balance between flexibility and stability is triggered by the diversity of the amending process’s functions. On the one hand, stability is required because the constitution is supposed to protect political and social minorities from frequent changes in the political framework. The nation can then more easily arrive at a constitutional commitment sheltered from everyday political strife. On the other hand, some flexibility in amendment is necessary to adapt the constitution to changing times, to improve upon the original version of constitutional law, and, more import in recent years, to check the interpretive power of constitutional courts (Dixon, 2011). In the special case of the U.S. Constitution, attempts to reduce formal entrenchment have been made (Young, 2007).

One major issue within the dichotomy of stability versus flexibility is the power of constitutional courts to use other constitutions as reference points for interpretation. The issue has been studied most elaborately in the context of U.S. constitutionalism. The U.S. Supreme Court has for more than 200 years relied on foreign sources of law, sometimes only to reinforce the logic and support for a position already arrived at on other grounds, but sometimes also to solve, by interpretation, controversial social issues with reference to European values (Calabresi & Zimdahl, 2005). In recent years, this practice of “engagement” has been openly supported by scholars of comparative constitutionalism (Jackson, 2010; Law, 2014) as well as by Justice Ginsburg (Ginsburg, 2006), but sharply criticized by others, most notably by Justice Scalia. It ought to be noted, however, that the Court rarely uses foreign references for genuine constitutional comparison, that is, as a normative standard, but mostly reduces the argumentative power of foreign law to an observation, that is, to legislative fact (Bryant, 2011). Among other jurisdictions, South Africa is another example for a cautious reliance on foreign authorities. The courts are frequently studying foreign sources, but then rejecting them as ill-suited for the South African context (Foster, 2010). This is quite different from the prevailing practice in Europe. European constitutions are considered part of a common legal culture, and a restriction to using foreign constitutions comparatively would seem “nearly grotesque” (Bernhardt, 2007).

Organizational Constitutional Law and Institutional Design

Much of constitutional law, particularly in the United States, deals with the respective powers set up by the Constitution (Rotunda, 2003). For the legislative, executive, and adjudicative state functions, constitutional law establishes separate institutions that are, in principle, independent of each other while being embedded in a system of checks and balances. The separation of powers in the United States has often been used as a reference, though there remains controversy about its qualities (Ackerman, 2000a).

Organizational constitutional law defines the state territory and the state’s guiding principles (democracy, rule of law, separation of powers, supremacy of the Constitution, international cooperation). For each of the powers, constitutional law determines the election process, eligibility, term of office, and competencies. The details of legislative procedure and veto powers are among the most important parts of this definition. In many consolidated democracies—with the United States, Japan, and Germany as the most notable exceptions—the power of the people to directly influence politics by referendum is also established by constitutional law (Morel, 2012). There are, however, critics of direct democracy and its practice (Clark, 1998).

State organization has traditionally been defined by the relationship between the legislature and the executive power during the formation of government (Cheibub & Limongi, 2011). In parliamentary democracies, only the members of parliament are directly elected by the people. They then form a government, often in joining multiple parties into one coalition, by electing a prime minister and other ministers. Parliament retains a strong control over the government and often has the power to replace the prime minister and his ministers (vote of no confidence). In presidential democracies the president as head of government is directly elected by the people. The president does not need a majority in parliament. Accordingly, few incentives exist for coalition formation (Linz, 1994).

Bill of Rights, Democracy, and the Rule of Law

Constitutional law establishes the legally binding force for the aspirations to human rights, democracy, and the rule of law. While early constitutionalism up to and including the Constitution of the United States (1787) was commonly restricted to institutional settings, contemporary constitutionalism, following the example of the French Declaration of the Rights of Man and of the Citizen (1789), typically sets a bill of rights first and foremost. To this day, however, there are some countries that have no bill of rights on the constitutional level and some that have no written bill of rights at all (e.g., Australia; Kildea, 2003). Within the field of institutional settings, procedures of direct democracy are at the core of contemporary research. While many countries have embraced more direct participation of citizens in the political process, some authors are questioning the positive impact this might have on the overall flourishing of the state (Blume, Müller, & Voigt 2009; Voigt & Blume, 2015). This ties into the general controversy about if and to what extent a trustful constitutional design can actually promote civic virtues (Frey, 1997) rather than just allowing citizens to use their freedom for narrowly defined self-interest and thereby causing “welfare losses” (Brennan & Buchanan, 1983).

While the United States had their bill of rights slowly growing through different stages of development, with a strong step taken after the Civil War (Gunther, 1991), most other constitutions now include a comprehensive chapter of basic rights reflecting the contemporary status of internationalized constitutional law. Typical provisions include a protection of human dignity, of life and personal integrity, of the freedom of the person from arrest, of the freedom of religion and belief, and of diverse other liberties (movement, home, education, science, privacy, family life, profession, business activity, property) combined with a strong protection of communicative rights (expression, information, association, assembly, press freedom, media freedom). Overlapping these rights and freedoms is the constitutional right to equality and the prohibition of particularly insidious forms of unequal treatment (discrimination based on race, ethnicity, religion, gender, age, etc.). Constitutional rights also include procedural guarantees, for example, recourse to the courts, the right to be heard, the right to defense, the right to impartiality of the judiciary, and the right to procedural fairness. Regarding the democratic framework, constitutional rights typically include political rights to vote and to candidacy in public elections.

One of the most persistent issues of constitutional law is the admissibility of the death penalty in light of the fundamental right to preserve one’s life. While all countries in Europe, with the lone exception of Belarus, have abolished capital punishment and even most of the countries in the Americas have done so by now, the majority of the states in the United States still keep that punishment even though most recent studies show a rapid decline in its application (Garrett, Jakubow, & Desai, 2017). The constitutionality of the death penalty has been questioned for many decades (Brennan, 1986; Goldberg & Dershowitz, 1970). It is a discussion where normative claims from constitutional law coincide with empirical findings of political science about the failure of deterrence-based crime prevention (Avio, 1988).

Scholarship about constitutional law is quite controversial with regard to all issues of bioethics. While some topics in this field, like the prohibition of cloning, have reached near-universal consensus politically, they are still questioned by legal scholars as a possible infringement on constitutional rights to scientific inquiry and to reproductive decisions (Andrews, 1998). Most aspects of human reproductive technology (in-vitro fertilization, embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, surrogate motherhood, egg donation) are still new enough to cause great regulatory variation among political systems and their respective positions on constitutional law (Robertson, 2004). Recent scholarship indicates that the governance of bioethics may become subsumed into the human rights law and practice and, thereby, strongly constitutionalized (Ashcroft, 2010). This is particularly true of the practice of surrogate motherhood where the best interest of the child needs to be considered as a possible restrictive factor for the fundamental rights to procreation and building a family of biological and legal parents (Krimmel, 1992; Stark, 1988).

Having a comprehensive catalog of fundamental rights still leaves a lot to interpretation of their protective power and functional dimensions (Tschentscher, 2013). A catalog of individual constitutional rights typically results in multidimensional duties imposed on the state. Most importantly, all state powers have the duty to respect the constitutional right (Calliess, 2013). They may not adopt any measure in law (legislation, ordinance, command) or in fact (police action, military force, secret surveillance) infringing on constitutional rights. In addition, everyone’s right to equality leads to the duty not to discriminate. These duties alone, however, do not warrant any protection against the intervention of private parties. Life and liberties must also be protected against fellow citizens. Therefore, the duty to protect is another dimension of constitutional rights (Gardbaum, 2011). It is a dimension, however, that has gained stronger support in Europe than in the United States (Michelman, 2005). And finally, there can be a constitutional duty to fulfill, whenever the constitutional rights cannot be upheld without active intervention of the state, for example, protecting the dignity of the person by rescuing people from hunger, cold, or involuntary homelessness.

The bill of rights established by constitutional law is distinct from other legal rights in its quality. Contemporary human rights theory assumes that at least the most important rights, including life and liberty, are pre-political and therefore universal as a matter of political theory, not merely practice (Cranston, 1983). This pre-political quality has been proposed by John Locke and appealed to in the Declaration of Independence (1776: “endowed by their Creator with certain unalienable Rights”). Such rights cannot be “created” by constitutional law in the same sense as other rights, for example, the right to fish in a pond, which are created by statutes and ordinances. There are some authors, however, who redefine the universality of human rights as a mere description of international practice (Beitz, 2003).

Basic rights established by constitutional law often have a different structure than other legal rights. While simple claim rights can be applied in a straightforward manner, for example, the seller in a valid purchase has a right to be paid the price, basic rights analysis tends to adopt a two-step process (Gardbaum, 2011). The first step determines whether a basic right has been infringed according to the scope of activities or properties assigned to it by constitutional law. If this is the case, the person has a prima facie claim to constitutional protection against that infringement. Sometimes, the scope of a basic right is already limited by its (explicit or implicit) definition in the constitution. The freedom of expression, for example, might be limited to truthful expressions and non-libelous value judgments. This will limit the scope of the right’s application by its very definition (internal limit). More important, however, are the limits imposed by the second step of basic law application. This step determines whether the action, even though infringing on the basic right, nonetheless is justified. The government can assert that a public policy objective has enough weight to override the prima facie right of the individual (external limit). For instance, the public interest in fighting terrorism can overcome the privacy right to be free from any kind of state surveillance. In sum, the internal limit within the first step holds the right inapplicable, while the external limit of the second step overrides the right.

The two-step process in basic rights theory can be embedded in a larger theory about the special character of the basic rights’ normative properties. Alexy proposed that these rights are generally not restricted to the all-or-nothing application of rules, but have a special character as legal principles. Collision with other principles does not lead to a simple preference relation of one over the other, but to a balancing procedure that is embedded in a proportionality test (Alexy, 2002). This theoretical model draws on the early adjudication of the German Federal Constitutional Court (Gardbaum, 2011). Balancing has become pervasive as a result of understanding constitutional provisions as principles, thereby giving the Court a decisive power that can no longer be criticized, leading into a “constitutionalization trap” (Poscher, 2003) and resulting in “dogmatic and methodological collateral damage” (Jestaedt, 2007, 2012). Nevertheless, the model has been adopted by courts throughout the world (Stone Sweet & Mathews, 2008). The proportionality test focuses on the relationship between the means (infringement of a basic right) and the end (furthering a public policy objective). After illegitimate ends are excluded (e.g., paternalistic or discriminatory goals), a three-pronged test first looks at the suitability, then checks the necessity, and finally engages in balancing by weighing the intrusive means and the legitimate ends respectively (Schlink, 2012).

In effect, constitutional law in most countries arrives at similar protection for similar activities and properties. However, the legal classifications in constitutional law can be quite different. Due to the strong protection of free speech in the United States, that body of constitutional law also protects commercial activities like advertisement as “commercial speech” (Barron, Dienes, McCormack, & Redish, 1996). The same activity is deemed part of the freedom to conduct commerce in other constitutions, sometimes resulting in a lower level of effective protection. On the other hand, most countries now acknowledge a comprehensive right to privacy in constitutional law, leading to privacy protection even for the most recent Internet activities. Due to the particular development of the Constitution of the United States, privacy protection by constitutional provisions is a patchwork of different protective aspects (Allen & Rotenberg, 2017) that does not result in comprehensive coverage, but has to rely on protective legislative action.

Among the substantive guarantees of constitutional law and quite apart from the bill of rights, there are usually provisions specifying democracy and the rule of law. While aspired by every country, the legal form and factual extent of these two properties can be quite varied (Frankenberg, 2012; Rosenfeld, 2001).

Constitutional Courts and Judicial Review

Constitutional law is typically upheld by a constitutional court. This is a court established by constitutional law as an independent organ of state charged with the task of defending the normative superiority of constitutional law within the legal order (Stone Sweet, 2012). The central instrument to fulfill this task is the power of judicial review, that is, the non-application and invalidation of legal precepts, even laws of parliament, whenever they are in violation of the constitution. In the United States, the power of review is implicit in every judicial power, therefore distributed among all judges of state and federal courts (diffuse judicial review). Within the European or Kelsenian model of constitutional courts, judicial review is monopolized in the hand of the constitutional court (concentrated judicial review). Hans Kelsen invented and established this institution as part of Austria’s Second Republic (1920–1934). In the Kelsenian model all other courts have to defer their judgments about the constitutionality of legal precepts to the constitutional court that is specialized for this task. Thereby, the court also retains exclusive authority over the interpretation and application of the constitution. It has the power not only to rule on specific cases of controversy, but also, like a “negative legislator,” to conduct general review of a statute before it is applied (abstract review).

To facilitate the highly political judicial function within the Kelsenian model, constitutional courts are formally detached from executive and legislative power as well as from all other courts of the judicial branch. They are part judicial, part political in nature, and occupy their own constitutional space. Accordingly, justices of the constitutional court are elected in a more political setting (supermajority and other procedural requirements) than is typical for the appointment of judges to other courts. The Kelsenian model of constitutional courts is now adopted by the majority of countries worldwide, with strong emphasis in Europe, Africa, and the Middle East (Stone Sweet, 2012) and with rapid growth in Latin America (Tschentscher & Lehner, 2013). Nevertheless, the resulting power of constitutional courts by applying judicial review to legislation has been an issue in constitutional law, particularly in Germany (Möllers, 2013).

Comparative Constitutional Law

Ever since Aristotle, constitutional law has been compared and constitutions have been classified (Tschentscher, 2011), but the number of comparisons between constitutional systems has significantly spiked only since the mid-1980s (Hirschl, 2014) with an additional increase in recent years due to the pervasiveness of information on Internet websites. There are a number of systemic dichotomies to be used as a starting point for comparative constitutionalism—monarchy vs. republic, bicameral vs. unicameral parliament, proportional vs. majoritarian elections, presidential vs. parliamentary government, and federal vs. unitary systems. But constitutional systems at large do not nicely line up along these dichotomies. While federalism, for instance, typically comes with a bicameral parliament, exceptions are possible (Tanzania). Also, federalism is associated with all kinds of governmental organization: presidential systems (Brazil, United States), parliamentary systems with prime minister (Australia, Canada, Germany), or even parliamentary systems with cooperative governments (Belgium, Switzerland). Facing this diversity, comparative constitutional law has not yet developed a specific canon of methods (Hirschl, 2005; Jackson, 2012).

The old approach of identifying “families” of constitutions or working with some reference constitutions (German, French, American, British, European, Post-Colonial) as “models” (Rosenfeld, 2012) is still very common. Notwithstanding the controversial economic thesis that legal families still matter today in diverse fields of the law (La Porta, Lopez-de-Silanes, & Shleifer, 2008), this approach has come under pressure among constitutional scholars since post-colonial centrifugal forces have driven away countries from their former mother systems. In French West Africa, for example, the fading of colonial law has left the former “family” without a strong resemblance within the Laws (Berinzon & Briggs, 2016). African constitutions, on the other hand, can be quite similar in outcome even though they differ in their institutional approaches like presidential versus parliamentarian systems do (Conac, 2005). Even the oldest constitutional “family,” the group of Commonwealth countries formerly known for their traditional legislative supremacy over effective legal protection of fundamental rights, has now evolved into a diverse spectrum with different bills of rights and procedures of protection (Gardbaum, 2001). Finally, systemic comparisons based on “families” are also unsuited to capture the idiosyncrasies of some constitutions like the serving nature of the right to broadcasting radio and television programs under the German Constitution (Grzeszick, 2013).

Regarding the methods of comparative constitutional law, functionalism is still the dominant procedure for large-scale comparisons. It begins by identifying some task the constitution is supposed to fulfill (e.g., judicial independence) and then draws up country reports for a long list of questions regarding that task. With functionalism, much energy goes into finding a common “neutral” ground, but little remains for actual controversies. Therefore, the more dynamic “dialectical” method of comparison has been proposed (Tschentscher, 2011). It starts from the partial viewpoint of a single constitution, intentionally accepts misconceptions, and then tries to rearrange different viewpoints in an iterative process of critical questioning. Other suggestions for reforming research include Hirschl’s call for a political turn in comparative constitutionalism. The agenda of doctrinal, intra-legal functionalism can be improved by extending the research to sociopolitical conditions and challenges that have led to a particular constitutional design: “constitutions neither originate nor operate in a vacuum” (Hirschl, 2014). However, this methodological turn from comparative law to comparative studies is not only very demanding on scholars (Dixon, 2016). It also requires the amalgamation of different perspectives driving trained lawyers on the one hand and political researchers on the other (Tushnet, 2016).

Federal States

In federal states, constitutional law also has to deal with the separation of powers between the federation and its state entities (vertical separation of powers). Federalism is among the most diverse features of constitutional law (Field, 1992). In the United States, for instance, the commerce power has always been distributed among federal powers and state powers. The line of this separation shifted dramatically in 1937, coinciding with President Roosevelt’s court-packing plan to establish his New Deal legislation (Sullivan & Gunther, 2010). Furthermore, the limitation of power by the federal constitution can be different for federal powers and state powers. In the United States, limitations for federal government mostly arise out of the Bill of Rights (1st to 10th Amendments), whereas state governments are limited by the 14th Amendment (Choper, Fallon, Kamisar, & Shiffrin, 2001). Other countries (e.g., Germany, Switzerland) apply the basic rights of the federal constitution to all constituent entities (i.e., Laender, Kantons), thereby directly and equally binding all state powers throughout the national territory. Even within a given setting of federalism, the actual practice varies between more cooperative approaches and more competitive forms (Waldhoff, 2013).

Constitutionalism in Public International Law

While international public law has followed the treaty model rather than the codification model of constitutionalism, it is, for many authors (Ackerman, 2000b; Crawford, 1997; Fassbender, 1998), by now sufficiently consolidated to be called “constitutionalized.” Compared to the constitutional law of states, however, the constitutionalism in international law is restricted to international human rights protection, to some aspects of normative hierarchy (de Wet, 2012), to the activation of the constituent power of the people, and to some powers of the Security Council of the United Nations. There is not yet any unifying document that has the character of a written constitution nor are there institutions equivalent to the executive, legislative, and adjudicative powers at the state level. The research on constitutionalism in public international law currently represents more of an aspiration rather than the status quo (Tschentscher, 2016).


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