Weiler on the UK Supreme Court

The first issue of the Jewish Review of Books has just published an excellent critique by Joseph Weiler of the UK Supreme Court’s decision in the Jewish Free School Case (see our earlier posts here and here). The case held that the admissions criteria of the Jewish state-supported school, denying admission to a child whose mother had undergone a non-Orthodox conversion, amounted to illegal racial discrimination under the English Race Relations Statute. The Race Relations Act makes an exception for religious discrimination generally, so that a Muslim or Christian or Sikh school can favor applicants of a particular faith. But in the case of Judaism, the Court held that its status as both religion and ethnicity meant that discrimination in favor of adherents as defined through the internal processes of the religion amounted to racial discrimination.

Of course that conception of the case is unfair to the applicant, who was religiously identified and represented a branch of the religion with a different approach to what constitutes a valid conversion. So in some sense the court was being called on to adjudicate as between competing conceptions of who is defined as a Jew.

My own initial reading of the case was through the American lens of the establishment clause. If the British government chooses to use public funds for religious schools, surely it can insist on non-discriminatory admissions criteria. But when any single religion is especially affected by the non-discrimination policy, one should perhaps look a little deeper. The gist of Weiler’s argument is that the UK Court applied a profoundly Protestant understanding of religious affiliation in considering the school’s admission criteria. The Christian idea is that salvation is available to anyone who chooses it, and so religion becomes a matter of choice. Judaism has a different self-definition, encompassing both religious and ethnic dimensions. The admissions decision in question in the Jewish Free School case applied only religious critera: as the dissent says, the child would have been admitted regardless of ethnicitiy had he undergone a religiously acceptable conversion.

Once the British state decides to use public funds for religious schools, it ought to defer to internal religious understandings of membership in the group, rather than imposing modernist and Christian ideas of religion as a free choice.
To be sure, these religious understandings are themselves internally contested, which is precisely why the Court was called on to hear the case. But should not the Supreme Court adopt a stance of staying out of such internal religious processes? That certainly has been the approach of the US Supreme Court when called on to make similar determinations.

--TG

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German Privacy Decision

The Federal Constitutional Court in Germany has apparently reversed an anti-terror law that allowed authorities to keep information about certain telephone calls and emails for up to six months. The Court said this was a "grave intrusion" on privacy rights. 35,000 Germans supposedly joined in the appeal and the Court has ordered deletion of the information obtained. The Court also said that the circumstances and instructions for retaining the material were unclear under the law, among other problems.

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When Should Supreme Court Judges Retire?

India is the latest state to debate the proper age at which Supreme Court justices should retire.

At present, Indian Supreme Court Justices retire at age 65. The current proposal would raise the age of retirement by three years to 68. The Government of India, speaking though the Minister for Law, Justice and Company Affairs, has not yet resolved to move ahead with changes to the retirement age, and has instead reserved judgment on the matter for now.

Were India to adopt this proposal--which would require a constitutional amendment approved by a supermajority of the national legislature--it would bring the country closer to the norm among other western liberal democracies. In Australia and South Africa, for instance, the retirement age is 70. In Canada, Justices retire at age 75.

This is an interesting topic of institutional design, one which has attracted considerable interest in the United States, where Supreme Court justices are not subject to mandatory retirement upon reaching a specific age. One of the most provocative proposals in the American context comes from Stephen Calabresi and James Lindgren, who have argued in favor of a constitutional amendment that would limit the term of Supreme Court justices to 18 years. Calabresi and Lindgren have made their case both in the popular press and in a scholarly journal.

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Colombian Judges Stop Álvaro Uribe's Reelection Plans

Back in 2005, in a 7-2 decision, the Colombian Constitutional Court decided to uphold the constitutional amendment that allowed current president, Álvaro Uribe, to be reelected. Today, also in a 7-2 decision, the Colombian Constitutional Court decided that it won’t take place the referendum that would have given to voters the last word on whether Mr. Uribe could be re-elected for a third time. Press reports mention that the main reasons behind the Court’s decision are the insurmountable vices of unconstitutionality that occurred when collecting the necessary number of signatures from people in favor of having a referendum on the issue, in particular the violation of explicit spending limits in the pro-referendum campaign. The details of the arguments will be known once the decision is publicly released, but so far it seems that the decision falls on technical and procedural grounds and that the Court did not enter the difficult terrain of the constitutionality of term limits per se.

As our colleague Tom Ginsburg wrote in this blog recently, former Niger’s President Mamadou Tandja disbanded the constitutional court that ruled against his attempt to be reelected. In Latin America, Tandja’s decision is similar to that of former Peruvian president, Alberto Fujimori, who also impeached the constitutional judges who back in 1997 declared unconstitutional his attempt for a third reelection. Álvaro Uribe has not yet reacted to this decision by the constitutional court, but it is expected that he will fully comply with it. If that is the case, he will join the minority (20% according to Tom Ginsburg’s data) of leaders who are not successful in the attempt to overstay their term. And perhaps the much smaller minority of leaders who are not succesful because of a judicial decision.

JRF

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Chinese Constitutionalism

Professor Randy Peerenboom has an important article now available on SSRN regarding Chinese constitutionalism. It's called "The Social Foundations of China's Living Constitution." The URL is: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542463Here's the abstract:

The article examines the social foundations of constitutionalism in China, focusing on constitutions as a historical response to particular events. The goal is to move beyond an analysis of the constitution as a formal text to shed light on the de facto constitutional order in China, on China’s living constitution and its social, historical, cultural, economic, political and legal foundations. Part I begins with a brief historical overview of China’s constitutions. Parts II discusses the current constitution, passed in 1982, and its four subsequent amendments. Part III explores the main functions of the constitution in China today and how the constitutional order actually operates. Part IV discusses China’s living constitution. Part V concludes with some thoughts about the future of constitutionalism in China, and the possibility of a party-state alternative to liberal democratic constitutionalism.

Professor Larry Cata Backer also published a fascinating article on SSRN within the last two years discussing how the Chinese communist party's internal processes can be viewed as a kind of constitutional system.

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Socio-Economic Rights Resource

There is a wonderful resource for those interested in the issue of socio-economic rights in South Africa and other countries that may not be well known. It's called the ESR Review, which stands for Economic and Social Rights in South Africa. It is produced by the University of the Western Cape Community Law Centre. It uses a newsletter format that gives descriptions and editorials on the latest developments in this area. It also covers developments in other countries. For example, the most current online issue (Nov. 2009) has a nice article about the right to health in Columbia. It can be found at: http://www.communitylawcentre.org.za/clc-projects/socio-economic-rights/esr-review-1

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Survey of empirical research on constitutions, constitutionalism, and constitutionalization

For readers who might be interested in a brief overview and critical assessment of the empirical literature on constitutions, constitutionalism, and constitutionalization, may I suggest a new paper, entitled simply "Constitutions," in which I focus on a couple of topics with potentially considerable implications for normative constitutional theory and offer some thoughts on where the field stands from a methodological perspective and how it might progress from here. The paper is available here.

Here is the abstract:

This chapter from the forthcoming Oxford Handbook of Empirical Legal Research offers an overview and critical assessment of the current state of empirical research on constitutions, constitutionalism, and constitutionalization. First, it describes how empirical research on “constitutions” has evolved into two distinct bodies of literature focused on different phenomena. Scholars from different disciplines have pursued distinct research agendas and favored different methodological approaches. De facto or “small-c” constitutions - meaning the collections of rules, practices, and understandings, written or unwritten, that describe how state power is actually allocated and exercised - have been the subject of a vast amount of social science research, much of which exhibits a quantitative or statistical bent. By contrast, the study of de jure or “large-c” constitutions - namely, formal legal documents that proclaim their own status as fundamental or higher law - has been largely the domain of legal scholars, who have tended to favor a qualitative, case-study approach.

The chapter next surveys the empirical literature on two topics that are, or ought to be, of considerable interest to those who study large-c constitutions. The first is that of whether constitutions matter. There is an enormous body of normative constitutional scholarship on the question of what kinds of institutional arrangements and personal rights and freedoms should be written into large-c constitutions. Much of this scholarship rests upon the implicit premise that formal constitutions are not mere parchment barriers but instead do in fact shape and constrain the structure and behavior of governments. This premise, however, finds only weak support in the existing empirical literature, particularly with respect to the efficacy of written rights guarantees.

The second topic of interest is that of the relationship between judicialization and constitutionalization. Empirical scholars have in recent years paid increasing attention to the related phenomena of judicialization, or the expansion of judicial policymaking at the expense of other government institutions, and constitutionalization, or the process by which formal legal instruments (primarily large-c constitutions) become effective sources of constraint upon state power and government action. These two phenomena are symbiotic. By characterizing policy questions as constitutional, courts claim exclusive authority over those questions and thus expand their power to make policy. In doing so, however, they also extend and reinforce the efficacy of the constitution. Thus, to explain how and why judicial power expands is also to illuminate one way in which large-c constitutions become effective as a practical matter.

The chapter concludes by discussing the methodological challenges faced by scholars who wish to do empirical research on constitutions, large-c and small-c alike, and by exploring possible solutions. These challenges boil down to the problems of inadequate data and causal complexity, which plague all of social science but are, for a variety of reasons, especially pronounced in the context of constitutions. Neither of the methodological approaches most commonly employed by empirical constitutional scholars - namely, case studies and statistical analysis - can by itself satisfactorily address these challenges. One solution is to practice methodological pluralism: by employing a combination of approaches, scholars can use the strengths of one approach to compensate for the weaknesses of the other. Another solution is to investigate innovative approaches such as laboratory experimentation and computer simulation. The chapter offers examples of how computer simulation, and agent-based modeling in particular, can be used to study constitutional phenomena that are difficult to investigate using traditional techniques. Given both the formidable methodological obstacles that constitutional scholars face and the limitations of the techniques that they currently use, such methodological possibilities demand greater attention.

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