Syllabus
* Weekly Schedule * 1st week * Liberal Constitution & Change What is the purpose and objectives of liberal constitutions? Constitutional change v. constitutional transformation How constitutions are changed - dynamics between formal and informal venues; legitimacy of informal venues; constitutional narrative Analyzing the rules of change: Article Five of the US Constitution v. Article 48 TEU Constitutional change requires broad societal consensus that is often formally manifested by reaching an agreement among all constitutional actors.
How should we deal with outdated rules of change that gives disproportional weight to constitutional actors no longer relevant? * Readings: Ackerman, B. & Maduro, M., How to Make a European Constitution for the 21st Century, The Guardian, October 3, 2012. * Assignment: Read the op-ed in the Guardian and think about how rules of constitutional change structure the constitutional discourse. This is a short task for all students considering taking the course.
No need to put it in writing. * 2nd week * Crisis & Constitution The foundations of the crises: Increasing divergence among economic, social, political, and legal developments Relationship between socio-economic (potentially unlimited) and political-legal developments (limits set by the constitution) Idea of constitutional capacity: Capacity of a constitution to absorb socio-economic changes; when capacity is exceeded, a crisis occurs Different crises - economic/social/socio-economic/political/constitutional Two-way relationship between crisis & constitution: Crisis as a trigger of constitutional transformation (positive) v. crisis as a result of lack of constitutional reaction to socio-economic development (negative) Constitutional dimension of crises: how constitutional actors (executive/ legislative/ judicial) answer to a crisis * Readings: Post, Robert, Theorizing Disagreement: Reconceiving the Relationship Between Law and Politics¸ 98 Calif. L.
Rev. 1319 (2010). Schmitt, C., The concept of the political, Chicago: University of Chicago Press, 2007 (excerpts). * Assignment: Task 1: Criticize the idea that all crises are in fact a result of a failure of constitution to absorb and address the socio-economic development.
Task 2: Based on the readings ask yourself the following question: Why is conflict essential for constitutional politics and constitution making? * 3rd week * Constitutional response to a crisis in the United States - Reconstruction & New Deal Legislative leadership v. executive leadership Problems of Article Five of the US Constitution; what are the alternative ways of constitutional change? How democratic legitimacy of such changes can be sustained? * Readings: Ackerman, B. We The People: Transformations.
Vol. 2. Cambridge (Mass.): Harvard University Press, 1998 (excerpts).
Bickel, A. M.
The Least Dangerous Branch. With an introduction by Harry H.
Wellington. 2d ed. New Haven (Conn.): Yale University Press, c1986 (excerpts). * Assignment: Common task: Compare constitution making during the Reconstruction and New Deal eras from democratic legitimacy point of view.
What is the structure of constitutional conflict in the US and how does it help to provide legitimacy? * 4th week * Constitutional response to a crisis in the United States - Civil Rights Era & Roe Rage Judicial leadership Democratic legitimacy of non-majoritarian constitutional actors * Readings: Ackerman, B. We the People: Civil Rights Revolution.
Vol. 3. 2014 (excerpt). Post, Robert & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv.
C.R.-C.L. L.
Rev. 373 (2007). * Assignment: Task 1: Criticizes the judicial leadership in constitutional transformation. Task 2: Argue for superiority of judicial leadership in constitutional transformation. What are its advantages? * 5th week * Constitutional response to a crisis in the European Union - First Transformation Judicial leadership 1960s-1970s Gradual adjustment or a response to a crisis - what crisis? Political stalemate of the era.
Flexibility of constitution making design; how space vacated by one constitutional actor is filled by another Democratic legitimacy of informal constitutional change * Readings: J.H.H. Weiler, The Transformation of Europe, 1991 E.
Stein, Lawyers, Judges and the Making of a Transnational Constitution, 1981 A. Stone Sweet, The Judicial Construction of Europe, 2004, Ch.1 (skim), 2 and 3 * Assignment: Common task: Define the crisis (crises) in the European integration since its inception until 1985.
Why and how the court took the leadership in constitutional transformation? * 6th week * Constitutional response to a crisis in the European Union - Second Transformation Executive leadership - Member States Return to formal constitution-making; emergence of new constitutional actors (Member States constitutional courts, ECB) and the role of the European Parliament and the Commission - Maastricht, Amsterdam, Nice Treaties Constitutional Treaty v. Lisbon Treaty - analyzing the differences of constitution-making processes and their democratic legitimacy * Readings: Halberstam, Daniel, Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States, in Ruling the World? Constitutionalism, International Law and Global Governance 326 (Jeffrey L.
Dunoff & Joel P. Trachtman eds., 2009).
Maduro M. P.
Contrapunctual Law: Europe’s Constitutional Pluralism in Action. In Walker, N.
Sovereignty in Transition. Portland (Or.): Hart, 2003, 2003, s. 502-537. * Assignment: Task 1: Assess the turn in constitution making in the second transformation and evaluate its problems.
Task 2: Focus on a conflict among constitutional actors in public sphere. Critically assess the role of Member States’ constitutional courts. * 7th week * The current socio-economic crisis and its constitutional foundations Is the current crisis solely economic? Is there a social dimension? What are the constitutional foundations of the crisis? Neo-liberal capitalism turn in 1970s/1980s * Readings: Scharpf, F.W., Monetary Union, Fiscal Crisis and the Preemption of Democracy.
MPIfG Discussion Paper 11/11, 2011. Streeck, W., The Crisis in Context: Democratic Capitalism and its Contradictions.
Max Weber Lecture Series, 2011. * Assignment: Task 1: Argue that the US financial crisis has been a result of past constitutional development. Give specific arguments.
Task 2: Argue that the Eurocrisis has been a result of past constitutional development. Give specific arguments. * 8th week * Constitutional dimension of the United States and European Union responses to the current socio-economic crisis Assessing the EU constitutional response: ESM, Fiscal Compact, and other responses Assessing constitutional dimension of the US response to the crisis - has there been one? The idea of fiscal constitution (the EU and its Member States v. the US) ECB, Troika, and austerity measures CJEU and MS constitutional courts responses * Readings: Kriesi, H., The political consequences of the financial and economic crisis in Europe: electoral punishment and popular protest.
Presented at Oxford, 2011. Henning, C.R. & Kessler, M., Fiscal Federalism: US History for Architects of Europe’s Fiscal Union.
Peterson Institute for International Economics Working Paper 12-1, 2012. Maduro, A New Governance for the European Union and the Euro.
Democracy and Justice, EP Report, 2012. * Assignment: Common task: Justify an opinion that the current crisis must be solved by experts, even if requiring constitutional adjustments, and will be legitimized by results. * 9th week * Constitutional Transformation & Democratic Legitimacy Can traditional constitutionalism respond to crises? New alternative theoretical frameworks - democratic, cosmopolitan, and societal constitutionalism Democratic dimension of constitutional response to major crises * Readings: Teubner, G., Constitutional Fragments: Societal Constitutionalism and Globalization, 2012 (excerpts). Kumm, Matthias, Cosmopolitan Turn in Constitutionalism, in Ruling the World? Constitutionalism, International Law and Global Governance 326 (Jeffrey L. Dunoff & Joel P.
Trachtman eds., 2009). * Assignment: Task 1: Apply Teubner’s idea to EU realities. What advantages does it bring? Task 2: Apply Kumm’s idea to EU realities.
What advantages does it bring? * 10th week * Constitution & Conflict Positive role of conflict o What is the function of social conflict? o How can it be used for advancement of constitutional framework? Can the conflict be facilitated through a particular institutional design? Dynamics of constitutional conflict during a transformation * Readings: Coser, Lewis, The Functions of Social Conflict (1964) (excerpts). Everson, Michelle & Christian Joerges, Reconfiguring the Politics-Law Relationship within the Integration Project through Conflicts-Law Constitut
Annotation
COURSE OVERVIEW
Two single aims of liberal constitutions are to provide stability on the one hand and to stimulate the development of society and an individual on the other hand. These two objectives are in tension. We may observe several planes of development in the society – political, economic, social, and legal, with the economy being the fastest component, followed by social transformation, political adaptation and finally by a legal embracement of the existing realities (as the design of liberal democracies tends to avoid social engineering). Social and economic crises are the result of socio-economic developments going beyond the absorption capacity of the political-legal system, in other words, beyond the capacity of the constitutional framework. In this course we will analyze the role of constitution in the occurrence of social and economic crises (the failure of constitution to embrace and streamline social and economic developments) as well as the role of constitution in responding to crises using examples from the United States and the European Union constitutional history. We will examine why traditional constitutionalism is unable to address today’s crises and consider alternative conceptual frameworks. Finally, we will inquire into the relationship between constitutional law and constitutional politics in the European Union, emergence of new constitutional actors and how conflict among constitutional actors in public sphere may increase democratic legitimacy of EU constitution making.