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Introduction to Comparative Constitutional Law

IMT Institute for Advanced Studies

Syllabus - Spring 2012
Instructor James Melton Oce: IMT Library #03 Oce Hours: by appointment

Course Description and Objectives

This is IMTs pre-course in comparative constitutional law. The purpose of the course is to provide students, who have never taken a course in constitutional law, a quick introduction to the subject. The course focuses on a fundamental dilemma in constitutional law: how can the constitution simultaneously empower government and ensure that government abides by the limits it sets forth? The course starts by addressing the notion of constitutionalism. Both the evolution of constitutionalism and how the written constitution ts into modern denitions of constitutionalism will be explored. As you will see, a central tenet of constitutionalism is the belief that the constitution can (and should) limit government. The remaining topics address the ability of the constitution to eectively perform this function. First, the judiciary is assessed as both an interpreter and enforcer of the constitution. Second, arguments for and against separation of powers will be appraised. Both horizontal and vertical forms of separation will be considered as potential indirect limits on the power of government. Lastly, the evolution and eectiveness of constitutional rights, a direct limit on governments power, will be evaluated. By the end of the course, you should be able to: understand the arguments for and against several mechanisms through which constitutions can limit the power of government use these arguments to independently evaluate the overall eectiveness of constitutional limits.

Course Requirements
Course Meeting: This course is organized as a tutorial, meaning that it is your responsibility to do the assigned readings and come to me with any questions that you have. Nonetheless, there will be one mandatory course meeting that is tentatively scheduled for April 4th from 2:30 - 5:00 p.m. The purpose of this meeting is twofold: 1) to make sure that no one has any outstanding questions about the course material prior to the end of the course, and 2) to evaluate your understanding of the course material. Final Paper: Your grade will be primarily based on a nal paper that answers the question posed in the course description. In other words, your paper should evaluate the ability of the constitution to limit government. Regardless of whether you argue that the constitution can eectively limit government or that constitutional limits are ineective, make sure that you consider and refute possible counter-arguments. 1

Your paper should take the form of a research note (10-15 pages, double-spaced). In other words, it should be an abbreviated form of a traditional political science manuscript, with an introduction (20% of the grade), a presentation of your argument supported by the literature and any empirical evidence you can provide (60% of the grade), and a conclusion (20% of the grade). For formatting, you can follow the guidelines set forth by any of the major political science journals (e.g. the American Political Science Review, the American Journal of Political Science, or the British Journal of Political Science ), but please be consistent. The paper is due by the end of the day on April 15th. No late papers will be accepted.

Assigned Readings
A number of required and supplemental readings are listed under each topic. Most required readings are available on the instructors website law/. Those required readings not available on the instructors website are available from IMTs library and are marked with an asterisk. Constitutions and Constitutionalism Sartori, Giovanni. 1962. Constitutionalism: A Preliminary Discussion. American Political Science Review. 56.4: 853-864. Jackson, Vicki, and Mark Tushnet. 1999. Comparative Constitutional Law. New York: Foundation Press. (Only Chapter 3, Parts A and B; pages 190-234) Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The Endurance of National Constitutions. Cambridge: Cambridge University Press. (Only Chapter 3; pages 36-64) *Breslin, Beau. 2009. From Words to Worlds: Exploring Constitutional Functionality. Baltimore: The Johns Hopkins University Press. (Only Chapters 1, 7, and 8; pages 14-29 and 133-176) Suggested Further Reading Brown, Nathan. 2001. Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government. Albany: SUNY Press. Casper, Gerhard. 1989. Changing Concepts of Constitutionalism: 18th to 20th Century. Supreme Court Review. 1989: 311-312. Hardin, Russell. 1989. Why a Constitution? in The Federalist Papers and New Institutionalism. Eds. Grofman, Bernard, and Donald Wittman. New York: Agathon Press. Murphy, Walter, James E. Fleming, and Sotirios A. Barber. 2008. American Constitutional Interpretation, 4th Edition. New York: Foundation Press Constitutional Interpretation and Review *Dorsen, Norman, Michel Rosenfeld, Andras Sajo, and Susanne Baer. 2003. Comparative Constitutionalism. Eagan: Thomson West. (Only Chapter 2, Part C; pages 139-207)

Marbury v. Madison, 5 U.S. 137 (1803). Ferejohn, John, and Pasquale Pasquino. 2004. Constitutional Adjudication: Lessons from Europe. Texas law Review. 82.7: 1671-1704. Cooter, Robert D., and Tom Ginsburg. 1996. Comparative Judicial Discretion: An Empirical Test of Economic Models. International Review of Law and Economics. 16.3: 295-313. Kesavananda Bharati Sripadagalvaru and Others v. State of Kerala and Anr, 1973(4) SCC 225 (1973). (Only Chief Justice Sikris Opinion; pages 1-71) Waldron, Jeremy. 2006. Core of the Case Against Judicial Review. Yale Law Journal. 115.6: 1346-1407. Suggested Further Reading Ginsburg, Tom. 2003. Judicial Review in New Democracies. Cambridge: Cambridge University Press. Stone Sweet, Alec. 2000. Governing Without Judges: Constitutional Politics in Europe. Oxford: Oxford University Press. Stone Sweet, Alec. 2008. The Constitutional Council and the Transformation of the Republic. Cahiers du Conseil Constitutionnel. 25.Special Issue on the 50th Anniversary of the Council: 65-69. Tushnet, Mark. 1999. The Possibilities of Comparative Constitutional Law. Yale Law Journal. 108.6: 1225-1310. United Mizrahi Bank Ltd. v. Migdal Kfar Shitu, 49(4) P.D 221 (1993). (Especially President Baraks Opinion; pages 139-258) Voigt, Stefan. 1999. Implicit Constitutional Change: Changing the Meaning of the Constitution without Changing the Text of the Document. European Journal of Law and Economics. 7.3: 197-224. Whittington, Keith E. 2005. Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court. American Political Science Review. 99.4: 583-596. Constitutional Limits I: Separation of Powers Madison, James. 1788 Federalist #s 47, 48, and 51. New York Packet. Ackerman, Bruce. 2000. The New Separation of Powers. Harvard Law Review. 113.3: 633-729. Calabresi, Steven G. 2001. The Virtues of Presidential Government: Why Professor Ackerman is Wrong to Prefer the German to the U.S. Constitution. Constitutional Commentary. 18.1: 51-104.

*Jackson, Vicki, and Mark Tushnet. 1999. Comparative Constitutional Law. New York: Foundation Press. (Only Chapter 4, Parts A and B; pages 350-395) Levinson, Daryl J. and Richard H. Pildes. 2006. Separation of Parties, Not Powers. Harvard Law Review. 119.8: 2311-2386. Weingast, Barry R. 2005a. The Performance and Stability of Federalism: An Institutional Perspective. in Handbook of New Institutional Economics. Eds. Menard, Claude, and Mary M. Shirley. Dordrecht: Springer, 149-172. Suggested Further Reading Cheibub, Jose Antonio. 2008. Presidentialism, Parliamentarism, and Democracy. Cambridge: Cambridge University Press. North, Douglas, and Barry R. Weingast. 1989. Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England. The Journal of Economic History. 49.4: 803-832. Qian, Yingyi, and Barry R. Weingast. 1997. Federalism as a Commitment to Preserving Market Incentives. The Journal of Economic Perspectives. 11.4: 83-92. Schuck, Peter H. 1996. Introduction: Some Reections on the Federalism Debate. Yale Law & Policy Review. 14.2: 1-22. Weingast, Barry R. 1995. The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development. The Journal of Law, Economics, and Organization. 11.1: 1-31. Young, Ernest A. 2002. Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism. New York University Law Review. 77: 1612-1737. Constitutional Limits II: Constitutional Rights Brutus. 1788. Anti-Federalist #84. Hamilton, Alexander. 1788. Federalist # 84. New York Packet. Marks, Stephen P. 1981. Emerging Human Rights: A New Generation for the 1980s. Rutgers Law Review. 33.2: 435-453. Nathan, Andrew. 1986. Chinese Democracy. Berkeley: University of California Press. (Only Chapter 6; pages 107-133) Davenport, Christian A. 1996. Constitutional Promises and Repressive Reality: A CrossNational Time-Series Investigation of Why Political and Civil Liberties are Suppressed. The Journal of Politics. 58.3: 627-654. Melton, James. n.d. Do Constitutions Matter? The Relationship between De Jure and De Facto Human Rights Protection. Unpublished Manuscript.

Weingast, Barry R. 2005b. The Constitutional Dilemma of Economic Liberty. The Journal of Economic Perspectives. 19.3: 89-108. Suggested Further Reading Camp Keith, Linda. 2002a. Judicial Independence and Human Rights Protection Around the World. Judicature. 85.4: 195-201. Camp Keith, Linda. 2002b. Constitutional Provisions for Individual Human Rights (19771996): Are They More than Mere Window Dressing ? Political Research Quarterly. 55.1: 111-143. Camp Keith, Linda, C. Neal Tate, and Steven C. Poe. 2009. Is the Law a Mere Parchment Barrier to Rights Abuse? The Journal of Politics. 71.2: 644-660. Cross, Frank B. 2001. The Error of Positive Rights. UCLA Law Review. 48.3: 857-926. de Vanssay, Xavier, and Z.A. Spindler. 1994. Freedom and Growth: Do Constitutions Matter? Public Choice. 78.3-4: 359-372. Hayo, Bernd, and Stefan Voigt. 2007. Explaining De Facto Judicial Independence. International Review of Law and Economics. 27.3: 269-290. Ginsburg, Tom, James Melton, and Zachary Elkins. 2011. On the Evasion of Executive Term Limits. William and Mary Law Review. 52.6: forthcoming. Law, David, and Mila Versteeg. 2010. The Evolution and Ideology of Global Constitutionalism. Unpublished Manuscript. Taylor, Brad. 2010. Does Parchment Matter? An Empirical Test. Unpublished Manuscript. Weingast, Barry R. 1997. The Political Foundations of Democracy and the Rule of Law. American Political Science Review. 91.2: 245-263.