Comparative Constitutional Law (Fall 2024)

Introduction

This course aims to survey the major topics in the scholarship of comparative constitutional law. Instead of focusing purely on constitutional doctrines, we will take a functional viewpoint to discuss the design and functions of different constitutional institutions, including constitutions, courts, political parties, legislatures, and executives. We will explore the implications of these constitutional institutions on constitutional developments. To facilitate this goal, we will study recent developments in constitutional law and politics in different countries, including constitutionally influential countries, as well as those outside the scope of our traditional focus.

1. Introduction to the Course / Constitutions & Constitutionalism

2. Constitutions & Constitutionalism

• Denis J. Galligan and Mila Versteeg, Theoretical Perspectives on the Social and Political Foundations of Constitutions, in Social and Political Foundations of Constitutions, pp. 8-13, 18-23, 23-28, 39-42 (2013).

• Rogier Creemers, China’s Constitutionalism Debate: Content, Context And Implications, 74 The China Journal 91, pp. 91-109 (2015).

3. Constitution-making

• Jon Elster, Forces and Mechanisms in the Constitution-Making Process (1995), pp. 371-386.

• Hanna Lerner, Constitution-writing in deeply divided societies: the incrementalist approach (2010), pp. 68-84.

Recommended:

• Hélène Landemore, Inclusive Constitution Making and Religious Rights: Lessons from the Icelandic Experiment (2017).

4. Constitutional amendments

• Yaniv Roznai, Towards A Theory of Unamendability (2015), pp. 36-56.

• Yasuo Hasebe, The End of Constitutional Pacifism? (2017), pp. 125-134.

5. Separation of powers

• Tarunabh Khaitan, Balancing Accountability and Effectiveness: A Case for Moderated Parliamentarism (2021), pp. 114-155.

6. Political parties, electoral systems, and democracy

• Yasmin Dawood, Democracy and the Right to Vote:Rethinking Democratic Rights under the Charter (2013), pp. 259-265.

• Constitutional Court of South Korea, Dissolution of Unified Progressive Party Case [26-2(B) KCCR 1, 2013Hun-Da1, December 19, 2014] (summary).

7. Constitutional rights (1): Political rights

• Stephen Gardbaum, The Structure of a Free Speech Right, in The Oxford Handbook of Free Speech (2021), pp. 213, 213-230.

8. Constitutional rights (2): Equality

• Sandra Fredman, Discrimination Law (2011), pp. 1-25.

9. Constitutional rights (3): Social and economic rights

• Jeff King, Judging Social Rights (2012), pp. 21-28. 

• Cass Sunstein, Against Positive Rights, 2 E. Eur. Const. Rev. 35 (1993), pp. 35-38.

10. Judicial review

• Denis J. Galligan and Mila Versteeg, Theoretical Perspectives on the Social and Political Foundations of Constitutions, in Social and Political Foundations of Constitutions, pp. 8-13, 18-23, 23-28, 39-42 (2013).

11. Judicial review: presentation

12. Judicial review: presentation

13. Emergencies

• High Court: Shin Bet surveillance of virus carriers must be enshrined in law, The Times of Israel (2020), https://www.timesofisrael.com/high-court-shin-bet-surveillance-of-virus-carriers-must-be-enshrined-in-law/

• Amir Kahane, The Israeli Emergency Regulations for Location Tracking of Coronavirus Carriers (2020), https://www.lawfaremedia.org/article/israeli-emergency-regulations-location-tracking-coronavirus-carriers

14. Foreign relations & International law

• Alexandra Huneeus & René Urueña, Treaty Exit and Latin America’sm Constitutional Courts (2017), pp. 456-460.