Constitutional Judicial Review and International Obligations of Criminalization

The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.

The 2018 Australian High Court Constitutional Term: Placing the Court in Its Inter-Institutional Context

Drawing on the scholarly commentariat tradition now practised across the world, this article provides an overview and analysis of the 2018 Australian High Court’s constitutional term. However, this article approaches this task through a slightly different lens: I consider the 2018 developments by reference to their inter-institutional context. That is, how the High Court’s jurisdictional and doctrinal developments do and should impact the jurisdiction and behaviour of the other branches of government, and in the context of constitutional judicial review, particularly the Australian parliaments. In the article, I consider the High Court’s 2018 constitutional jurisprudence in three areas of law, and how its decisions have and should impact the constitutional responsibilities and practice of parliaments. Placing the High Court’s term in this inter-institutional context will give a better sense of the reach of the impact of the Court’s jurisprudential developments, as well as serve as a reminder that constitutional responsibility will not always lie with the courts for the articulation and prioritisation of constitutional principle.

Constitutionalism, Liberalism, and Democracy

This chapter describes the tension between democratic decision-making procedures and constitutional judicial review. It shows that the liberal values that justify a democratic self-government may also vindicate some limits on majoritarian decision-making procedures, but not necessarily in the form of the current constitutional regimes. The chapter argues that constitutional courts are not a necessary feature of a liberal regime. It also acknowledges that democratic decision-making has many defects. These defects concern the fate of persistent vulnerable minorities, the tendency towards short-sightedness, a similar tendency to downplay people's rights and liberties for the sake of greater economic gains or in the force of external threats, and finally the dangers of populism and anti-liberal politics gaining ground within a democratic system. The chapter then depicts courts as essentially conservative institutions which are not — and cannot be — as counter-majoritarian as depicted by legal scholars, mainly because their legitimacy and the acceptance of their decisions depends on the people. It contends that the acceptance and efficacy of judicial review is context dependent, but that some fights still need to be fought in the political, not the legal arena.

Inventing Separation of Powers

This chapter focuses on separation of powers. It shows that even standard historical accounts do not fully appreciate how central the separation of powers was in the ferment that led to the U.S. Constitution. Separation of powers first of all served as a newly central tool in diagnosing perceived failures in the first state constitutions, drafted following the issuing of the Declaration of Independence. Separation of powers, hitherto a secondary idea, came to the fore to demonstrate that too much power had been concentrated in the legislatures. The same idea that exposed the problem also pointed to the solution. Separation of powers suggested that both the executive and judicial branches needed to be made sufficiently independent and equipped to check the dominant legislatures. For the judiciary in particular, that meant, among other things, salary protection, life tenure, and the emerging idea of constitutional judicial review.

The Unbroken Supremacy of the Canadian Constitution

This article revives the awareness of the heritage and inheritance of section 52(1) of the Constitution Act, 1982. It exposes the pre-1982 legal basis for constitutional judicial review in Canada and the mechanics of the transition in 1982 to an express supremacy clause. This article also challenges two popular notions in Canadian constitutional law today. The first is that the addition of section 52(1) in 1982 transformed Canada from a state governed by parliamentary supremacy into a state governed by constitutional supremacy. The second is that the Canadian judiciary became the guardian of the Canadian Constitution in 1982. Contrary to conventional wisdom, 1982 was, with respect to the supremacy of the Canadian Constitution, a moment of continuity rather than a break with the past.

Constitutional and administrative paradigms in judicial control over EU high and low politics

This article explores the particular tensions surrounding judicial review in EU external relations. The tensions are classified using a two-dimensional framework. Firstly, a distinction based on policy domains of high and low politics, which is derived from constitutional theory, and external to the CJEU; and secondly a distinction based on legitimizing paradigms of administrative (EU as effective global actor) or constitutional (judicial review as guarantee of fundamental rights) in character and determined by the Court itself. Even though one would expect a dominance of the administrative paradigm in the domain of high politics, the Court uses both the administrative and the constitutional paradigm in its external relations case-law. The decision on which of these becomes the guiding frame seems to depend more on the policy domain, and be made case by case, which suggests politically sensitive adjudication, rather than a coherent approach to legitimizing the nascent judicial review in EU external relations.

I The Constitutional Court, 1 The Historical Development of Italian Constitutional Adjudication

One of the remarkable facts of constitutional judicial review in Italy is the way in which it was grafted onto a tradition of law that had been very inhospitable to any such practice prior to the mid-twentieth century. The development of this unprecedented institution and the factors that contributed to its success not only assist the reader to understand the subsequent contours and character of the Constitutional Court but also provide a number of very useful insights and lessons for other jurisdictions seeking to establish or consolidate new and fragile systems of constitutional adjudication. This chapter traces that history and identifies those features.