• Selected
• Entire List

Abstract:
The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitution. In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.

Constitutional Amendment, Constitutional Democracy, Constitutional Law, Comparative Constitutional Law, Sovereignty, Legitimacy, Statehood, Canada, Germany, India, South Africa, United States

Abstract:
No question of constitutional design is more intensely debated than whether emerging democracies should adopt presidential or parliamentary systems. This is an important debate but it misses a critical point about constitutional design — namely that the structural differences between presidentialism and parliamentarism conceal much more than they reveal. In this Article, I demonstrate precisely how conventional accounts of the structural differences between presidentialism and parliamentarism actually obscure their functional similarities.

presidentialism, parliamentarism, constitutional design, efficiency, electoral systems, separation of powers, fusion of powers

Abstract:
With the enduring tension pitting constitutionalism versus democracy as my backdrop, I endeavor in this paper to make three contributions to the scholarly literature. First, I improve the theoretical foundations of constitutional entrenchment by unveiling a new theory to understand the varying degrees of constitutional permanence. Second, I develop an original taxonomy of entrenchment clauses, beginning with what I call preservative entrenchment, transformational entrenchment and reconciliatory entrenchment. And, third, in reaching the conclusion that entrenchment undermines the participatory values that give constitutionalism its meaning, I propose an alternative to entrenchment that I call the entrenchment escalator. In contrast to entrenchment clauses that render constitutional amendments a constitutional impossibility, the entrenchment escalator provides a promising alternative that both embraces the expressive function of entrenchment and remains consistent with the promise of constitutionalism.

Comparative Constitutional Law, Democratization, Entrenchment, Constitutional Amendment, Constitutionalism, Democracy, Participatory Democracy, Procedural Democracy, Substantive Democracy

Abstract:
The Notwithstanding Clause is the cornerstone of our Canadian constitutional architecture. It merges parliamentary supremacy and constitutional democracy. But the Notwithstanding Clause finds itself conceptually situated between illegitimacy and desuetude in a constitutional purgatory. This is not a promising portrait. Nonetheless, it is a blessing in disguise. The tragic failure of the Notwithstanding Clause is a fortuitous opportunity to create a new process to achieve its objectives while also remaining loyal to the intentions of its creators. That is the task I have given myself in this Article. This new process - which I call advisory review - is a new form of judicial review that is uniquely Canadian, born of Canadian roots, and consistent with Canadian constitutional traditions.

Notwithstanding Clause, judicial review, Canada, Charter of Rights and Freedoms, democratic legitimacy, desuetude

Abstract:
It has long been the prerogative of a presidential nominee to bestow the Vice Presidency upon any constitutionally eligible individual without any measure of popular input or consent. This arrangement may have been tolerable in the past when the Vice President was a mere minion wielding only negligible influence upon the organs of government. But the modern power and prestige of the Vice Presidency - which now holds prime ministerial dominion in America and commands transnational authority - calls for the popular legitimization of the office.

As the Vice Presidency continues to stand only one heartbeat from the Presidency in the precarious international context governing American interaction with friend and foe alike, the office can no longer defensibly remain the exclusive province of a political party's presidential nominee. The United States must democratize the Vice Presidency with some form of popular consent buttressing this focal post in American government, at last liberating the office from its crisis of popular illegitimacy.

Vice Presidency, Vice President, Presidential Politics, Constitutional Design, Democratic Convention, Republican Convention, Presidential Nominee, Vice Presidential Nominee, Electoral College, Al Gore, Dick Cheney, George H.W. Bush, Walter Mondale, Democracy, Democratic Legitimacy

Abstract:
Democratic constitutionalism has often erected a high barrier separating the citizen from the state. This is paradoxical because the very promise of constitutionalism is to produce precisely the opposite result: to bind the citizen to the state, and to create and cultivate a constitutional culture that is anchored in participatory democracy. I have a name for this paradoxical state of affairs: counterconstitutionalism. In this article, I introduce and illustrate the concept of counterconstitutionalism with reference to bills of rights in constitutional states representing civil and common law traditions on four continents.

democracy, constitutionalism, Bills of Rights, citizenship, participatory democracy, liberal democracy, constitutional design, Canada, United States, South Africa, India, Germany

Abstract:
The Federalist Founding Fathers would not recognize the modern American judiciary. Far from being the "least dangerous" branch and even farther from being "beyond comparison the weakest of the three departments of power" — as the Federalist Papers famously predicted — the judiciary today wields much greater influence than the Federalists originally envisioned. The Federalists were wrong in their forecasts of the reach of the American judiciary. But the Anti-Federalists were right. They correctly predicted the role of the modern American judiciary.

The Anti-Federalists cautioned that judicial encroachments into the public square would undermine the American project of democracy and its promise of popular participation in public discourse. This Article explores the use of several constitutional devices in the service of American popular democracy. These devices have two purposes: first, to restore balance to the American constitutional order, and second, to bring the modern American judiciary into conformity with the more modest vision the Founding Fathers had when they created it.

judicial review, judiciary, Founding Fathers, Federalists, Anti-Federalists, Federalist Papers, popular sovereignty, Alexander Bickel

Abstract:
This Article is an exercise in comparative constitutional law and politics. It is both descriptive and analytical. It explores how - and explains why - Canada and the United States have mediated the tension between the right of access to abortion clinics and the freedom of religious expression. It also illuminates why both nations have privileged the right of access to abortion clinics over the right to free religious expression.

Privacy, Religion, Religious Expression, Abortion, Canada, United States, Comparative Constitutional Law, Constitutional Law, Comparative Law, Proportionality, Abortion Clinics

Abstract:
The United States should define religious neutrality - whether strict or benevolent - in the realm of politics, not in courts of law. It remains possible to remove the definition of neutrality from the command of the judiciary while nonetheless reserving a critical role for the judiciary. Focusing upon religious schools as a launching pad, this article reframes the enduring debate on neutrality, not by arguing for either strict or benevolent neutrality, but by redirecting the decisional responsibility from the judiciary to the people.

Establishment Clause, Religion, Neutrality, Lemon, Everson, Religious Schools, Denominational Schools, Alexander Bickel, Cass Sunstein

Abstract:
This Article explores whether liberal democracy demands the separation of Church and State. Drawing from several western jurisdictions - including Canada, the United States, Argentina, Denmark, Finland, Sweden, and England - this Article advances the historical and theoretical claim that the American model of strict separationism is not necessarily an indispensable feature of liberal democracy.

Establishment Clause, Comparative Constitutional Law, Constitutional Law, Comparative Law, Religion, Rreedom of Religion, Liberal Democracy, Canada, United States, Argentina, Denmark, Finland, Sweden, England, Separation of Church and State, Religious Schools, Denominational Schools

Abstract:
Establishment Clause case law is incoherent in many consequential ways. Many point directly to the Supreme Court of the United States for this lamentable state of affairs. I disagree with this diagnosis. It is an inaccurate and incomplete criticism to blame the Supreme Court for the current landscape of establishment jurisprudence. Modern establishment doctrine - incoherent though it may be - is more properly viewed as an evolving product of the continuing public constitutional discourse among Americans and between public and private forces about the proper role of religion in the American polity. Just as early Americans debated among themselves, armed with their differing hopes and visions about how to mediate the intersection of religion and the state, so too Supreme Court decisions have, on a parallel track, reflected the changing contours of this important debate - a conversation that has yet to cede center stage in the American public square.

Establishment Clause, Religion, Freedom of Religion, Established Church, Supreme Court, Disestablishment, Colonial History, Bill of Rights, American History

Abstract:
In elaborating the meaning of the Establishment Clause, judges and scholars have commonly turned to the founders as their interpretative compass. But this should not necessarily be so - at least not exclusively. In giving meaning to the Establishment Clause, judges and scholars should also turn to the framers and ratifiers of the Fourteenth Amendment. The Fourteenth Amendment transformed the original meaning of the civil protections preserved in the Bill of Rights. In light of the transformative effect of the Fourteenth Amendment, those responsible for its conception and confirmation must be consulted - of course in concert with Jefferson, Madison, and other founding leaders - in order to fully and properly gauge the meaning of the modern Establishment Clause.

Establishment Clause, Fourteenth Amendment, Bill of Rights, Founding Fathers, James Madison, Thomas Jefferson, Frederick Douglass, Akhil Amar, Kurt Lash, Reconstruction, Religion