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A Brief History of the New Constitutionalism, or “How We Changed Everything So That Everything Would Remain the Same”

Published online by Cambridge University Press:  04 July 2014

Michael Mandel
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Extract

The Italians have a word for what I want to say about modern constitutionalism: “gattopardesco,” that is “leopardesque”, not as in the animal but as in the novel The Leopard by Tomasi di Lampedusa. The novel is about a noble Sicilian family at the time of the unification of Italy in the mid-nineteenth century. Italian unification was mainly a matter of the northern Savoy monarchy of Piemonte conquering the peninsula and vanquishing the various other monarchs, princes, etc., including the Bourbon rulers of Sicily and Naples. But there were other elements about and stirring up trouble, anti-monarchist and even socialist elements. In a scene early in the novel, the Sicilian Prince of Salina, the main character, is shocked to learn that his favourite nephew, Tancredi Falconeri, is off to join the invading northerners. He remonstrates with the boy:

You're crazy, my son. To go and put yourself with those people … a Falconeri must be with us, for the King.

Type
Research Article
Information
Israel Law Review , Volume 32 , Issue 2 , Spring 1998 , pp. 250 - 300
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1998

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Footnotes

*

Professor, Osgoode Hall Law School, York University, Toronto; Visiting Professor, Faculty of Law, The Hebrew University of Jerusalem. The author wishes to thank the Halbert Centre for Canadian Studies of the Hebrew University and the Faculty of Law for their hospitality and support during the writing of this paper, and Karen Golden Mandel for her helpful comments on an earlier draft. This paper is part of a larger project generously supported by the Social Sciences and Humanities Research Council of Canada (Grant No. 410-94-1441), and the author is thankful for that, too. This is a second in the series of articles on “Democracy and the Courts”, the first of which appeared in Vol. 32, No. 1, p. 3.

References

1 “Se vogliamo che tutto rimanga com'è, bisogna che tutto cambi” Giuseppe Tomasi di Lampedusa, Il Gattopardo, (Feltrinelli, 1994), 41 Google Scholar.

2 “Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator … But though the tribunals ought not to be fixed, the judgments ought; and to such a degree as to be ever conformable to the letter of the law …

But as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor”.

de Secondat, Charles, de Montesquieu, Baron, The Spirit of the Laws, trans, by Nugent, Thomas (Hafner, 1949), Book XI.6, pp. 152, 153, 159 Google Scholar.

3 http://www.sigov.si/us/eus.map.html.

4 For two recent examples: when the challenge to the introduction of the “Euro” before the German Constitutional Court failed, the losing law professor claimed that the decision was “highly political and opportunistic” and that “Germany is no longer a law-based state”: International Herald Tribune, April 3, 1998: 1, 12 Google Scholar; and in a widely reported speech to new judges, the President of the Supreme Court of Israel responded to critics by saying: “Those who argue that we should not hand down rulings on issues with political implications don't understand what a court is”, reiterating his claim in United Mizrahi Bank (infra n. 5, at 162) that though “a constitutional determination has political ramifications … it is not made out of political considerations” but rather considerations that are “legal-constitutional”. Ha'aretz (English edition), June 3, 1998: 3 Google Scholar.

5 United Mizrahi Bank Ltd., et al. v. Migdal Cooperative Village, et al., (1995) 49(iv) P.D. 221, opinion of the President of the Court, Justice Aharon Barak (in English translation, at 121. All future references to this case cite the English translation).

6 Aristotle, , Politica, Book III, Chapter 8 in McKeon, R., ed., Introduction to Aristotle (Random House, 1947) 592–593 Google Scholar:

“Oligarchy is when men of property have the government in their hands; democracy, the opposite, when the indigent, and not the men of property, are the rulers … For the real difference between democracy and oligarchy is poverty and wealth. Wherever men rule by reason of their wealth, whether they be few or many, that is an oligarchy, and where the poor rule, that is a democracy. But as a fact the rich are few and the poor many … and wealth and freedom are the grounds on which the oligarchical and democratical parties respectively claim power in the state”.

7 Plato, , The Republic, Book VIII, Lee, H.D.P., trans, and ed. (Penguin Books, 1955) 338 Google Scholar. A very narrow notion of citizenship allowed Athenian “democracy” to exclude women and slaves, constituting more than two-thirds of the adult population. See “Translator's Introduction” ibid., at 23. However, this evidently left enough room for class conflict so as to horrify the property holders.

8 MacPherson, C.B., The Real World of Democracy (Clarendon Press, 1966) 5 Google Scholar.

9 Supra, n. 6, Book III: 7, 592.

10 Supra, n. 7, at 329, 331, 338.

11 E.g., Marx, Karl and Engels, Friedrich, The Communist Manifesto, 1848 (Appleton-century-Crofts, 1955) 31 Google Scholar: “ … the first step on the revolution by the working class is to raise the proletariat to the position of ruling class, to establish democracy”.

12 This is not the place to parade the latest statistics on the vertiginous growth in in equality of economic power, which nobody disputes anymore. Here s just one from the United States as reported in the International Herald Tribune of March 2, 1998, at p. 3 Google Scholar: “The top 1% of Amercians have more wealth than the bottom 90 percent, the report [of the Milton S. Eisenhower Foundation] says, placing the United States first among industrialized nations when it comes to wealth inequality”. For some Canadian figures, see my The Charter of Rights and the Legalization of Politics in Canada (Thompson Educational Publishers, 2d ed., 1994) 337–340 Google Scholar.

13 Supra n. 5, at 120.

14 Dworkin, Ronald, Freedom's Law. The Moral Reading of the American Constitution (Harvard University Press, 1996) 34 Google Scholar.

15 Supra n. 5, at 137, quoting New York Trust Co. v. Fisher 256 US 345 (1921), 349.

16 Cappelletti, Mauro, “Repudiating Montesquieu? The Expansion and Legitimacy of ‘Constitutional Justice’”, in Kollmer, Paul J. and Olson, Joanne M., eds., The Judicial Process in Comparative Perspective (Clarendon Press, 1989) 186–187 Google Scholar, emphasis in original.

17 United Mizrahi Bank Ltd., et al. v. Migdal Cooperative Village, et al., supra n. 5, at 1.

18 Ibid., at 80.

19 Ibid., at 111.

20 Justice Barak cites no historians for his claims in United Mizrahi Bank on the lessons of the Second World War, only the lawyers McWhinney, Cappelletti and Brewer-Carías, ibid., at 111.

21 Ehrmann, Henry W., “Judicial Activism in a Divided Society: The Rule of Law in the Weimar Republic”, in Schmidhauser, John R., ed., Comparative Judicial Systems: Changing Frontiers in Conceptual and Empirical Analysis (Butterworth, 1987)Google Scholar.

22 Ibid., at 83-85.

23 Erich, Eyck A History of the Weimar Republic, Hanson, Harlan P. and Robert Waite, G.L., trans. (John Wiley & Sons, Inc., Vol. I, 1970) 287–288 Google Scholar.

24 Quoted in Blachly, F.F. and Oatman, Miriam E., “Judicial Review of Legislative Acts in Germany”, (1927), 21 Am. Pol. Science R. 113, at 117 Google Scholar.

25 The bias gave rise to jokes such as the following:

There was shock when the Berlin judge sentenced the two Communists to only 5 years in prison for the crime of beating up an SA man. But the judge explained that, though the crime was very grave, he had to take into account, as a mitigating factor, that there was absolutely no evidence connecting the accused to the crime!

26 Müller, Ingo, Hitler's Justice: The Courts of the Third Reich, trans, by Schneider, Deborah Lucas (Harvard University Press, 1991) 15–16 Google Scholar.

27 Ibid., at 118.

28 Ibid., at 220.

29 Ibid., at 220-222.

30 Ward, Ian, Law, Philosophy & National Socialism (1992)Google Scholar. The same claim is made in Koch, H.W., A Constitutional History of Germany in the 19th and 20th Century, (Longman, 1984)Google Scholar, in which one can also find an unusually sympathetic treatment of the German judiciary.

31 Harris, Whitney R., Tyranny on Trial: The Evidence at Nuremberg (1954) 57 Google Scholar; Dülffer, Jost, Nazi Germany 1933-1945. Faith and Annihilation (Arnold, 1992) 142 Google Scholar.

32 “The verdict has been found ‘worthy of Solomon’. Yet such a comparison would have been valid only if the wise monarch had really let the executioner hack the disputed child in half”. Eric Eyck, supra n. 23, Vol. II, at 421.

33 Ibid., at 410-425.

34 Of the many accounts of these events besides those already cited, see the discussions in Bessel, Richard, Political Violence and the Rise of Nazism: The Storm Troopers in Eastern Germany 1925-1934 (Yale University Press, 1984)Google Scholar; Fischer, Klaus P., Nazi Germany: A New History (Constable, 1995)Google Scholar; and the classic Shirer, William L., The Rise and Fall of the Third Reich: A History of Nazi Germany (Pan Books, 1964)Google Scholar.

35 Cassels, Alan, Fascist Italy (Thomas Y. Crowell, 1968)Google Scholar; Smith, Dennis Mack, Italy. A Modern History, rev. ed. (University of Michigan Press, 1969)Google Scholar.

36 See, in Italian, Modona, Guido Neppi, Sciopero, potere politico e magistratura 1870-1922, (Bari, 1969)Google Scholar and “La magistratura e il fascismo”, in AA. VV. Fascismo e società italiana (Torino, 1972)Google Scholar. Some key decisions of the Cassazione are Lucernare c. Ministero Lavori Pubblici, Giur. it., 1918, I, 654; Curreri c. Abate, Giur. it., 1922, I, 1, 65; Nisco e Banco Di Napoli c. Enrietti, Giur. it., 1922, I, 1, 929 and Intaglietta ricorrente, Giur. it., 1924, II, 1, 122.

37 Federal Constitutional Law of the Republic of Austria, 1920, Art. 89.

38 Ibid., Art. 140.

39 Ibid., Art. 147.

40 Kelsen, Hans, “The Forces for Reform” Neue Freie Presse, October 6, 1929 (translation)Google Scholar.

41 Gulick, Charles A., Austria from Hapsburg to Hitler (University of California Press, 1948)Google Scholar.

42 Federal Constitution Law of the Republic of Austria, 1929, Arts. 89.2, 140 and 140.1.

43 E.g., Brewer-Carías, Allan R., Judicial Review in Comparative Law (Cambridge University Press, 1989) 195–196 Google Scholar.

44 Supra n. 40.

45 In Austria, too, the judicial lenience on right-wing violence played an important part. See JrGraham, Malbone R., “The Constitutional Crisis in Austria”, (1930) 24 Am. Pol. Science R. 144 Google Scholar.

46 Kelsen, Hans, “Judicial Review of Legislation: A Comparative Study of the Austrian and American Constitution”, (1942), 4 Journal of Politics 184, at 188 CrossRefGoogle Scholar; Federal Constitutional Law of the Republic of Austria, 1929 Art. 147.

47 Gulick, supra n. 41. “This fact, that judicial review is anathema to the tyrant, is confirmed by developments in many countries in several continents …” Cappelletti, supra n. 16, at 189.

48 Robinson, Richard A.H., The Origins of Franco's Spain: The Right, the Republic and the Revolution, (David & Charles, 1970) 118 Google Scholar.

49 Jackson, Gabriel, The Spanish Republic and the Civil War 1931-1939, (Princeton University Press, 1965)Google Scholar.

50 Thomas, David, Democracy in France Since 1870 (Oxford University Press, 1969)Google Scholar.

51 Assemblea Costituente, March 10, 1947, at 324 (my translation).

52 Ibid., at 330 (my translation).

53 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

54 Roe v. Wade 410 U.S. 113 (1973).

55 Lochner v. New York 198 U.S. 45 (1905); Hammer v. Dagenhart 247 U.S. 251 (1918); Bailey v. Drexel Furniture 259 U.S. 20 (1922) discussed in Griffin, Stephen M., American Constitutionalism: From Theory to Politics, (Princeton University Press, 1996) 88–90 Google Scholar. See also Galloway, Russell, Justice For All? Rich and Poor in Supreme Court History 1790-1990 (Carolina Academic Press, 1991)Google Scholar.

56 Stone, Alec, The Birth of Judicial Politics in France: the Constitutional Council in Comparative Perspective, (Oxford University Press, 1992)Google Scholar.

57 Simons, W., “Relation of the German Judiciary to Executive and Legislative Branches of the Government Compared with that of the United States” (1929) 15 A B A Journal 762-67, 779 Google Scholar; 54 A B A 226-42.

58 163 U.S. 537 (1896).

59 15 S. Ct. L. Ed. 691 (1857).

60 Cappelletti, supra n. 16, at 189.

61 Farber, Daniel A. and Sherry, Suzanna, A History of the American Constitution, (West Publishing Company, 1990) 16–17 Google Scholar; Mead, Walter B., The United States Constitution: Personalities, Principles and Issues, (University of South Carolina Press, 1987) 65 Google Scholar.

62 Documentary History of the Constitution of the United States of America 1786-1870 (United States of America Department of State, Vol. IV, 1905) 288 Google Scholar.

63 Hall, Kermit L., ed., Major Problems in American Constitutional History (Vol. I) 131 Google Scholar.

64 Ibid.

65 Hence Madison's formulation of the need for a “defence agst. the inconveniences of democracy consistent with the democratic form of Govt”. Ibid. See also Appleby, Joyce “Capitalism, Liberalism, and the United States Constitution” in Howard, A.E. Dick, ed., The United States Constitution: Roots, Rights, and Responsibilities (Smithsonian Institution Press, 1992) 61 Google Scholar; Anderson, Thornton, Creating the Constitution: The Convention of 1787 and the First Congress, (Pennsylvania State University Press, 1993) 166ff.Google Scholar

66 Nobody's fault but my own!

67 Kommers, Donald P., “The Federal Constitutional Court in the German Political System”, (1994) 26 Comp. Pol. Studies 470, at 472 Google Scholar.

68 Bark, Dennis L. and Gress, David R., A History of West Germany. Volume I: From Shadow to Substance 1945-1963, (Basil Blackwell, 1989) 221 Google Scholar.

69 Müller, supra n. 26, at 224.

70 Stone, supra n. 56, “Constitutional Politics as Oppositional Politics.”

71 Michael Mandel, Supra n. 12, chaps. 1 and 2.

72 The Political Constitution of the Republic of Chile, 1980.

73 “Removing the Old Regime's ‘Enclaves’”, Latin American Weekly Report, 11 March 1997, at 129 Google Scholar.

74 Schwartz, Herman, “The New East European Constitutional Courts”, (1992) 13 Mich. J. Int'l L. 741 Google Scholar; Hartwig, Matthias, “The Institutionalization of the Rule of Law: The Establishment of Constitutional Courts in the Eastern European Countries”, (1992) 7 Am. U. J. Int'l L. & Pol'y 449 Google Scholar; Hausmaninger, Herbert, “From the Soviet Committee of Constitutional Supervision to the Russian Constitutional Court”, (1992) 25 Cornell Int'l L.J. 305 Google Scholar.

75 Yeltsin, Boris, The Struggle for Russia, trans, by Fitzpatrick, Catherine A., (Random House Inc., 1994) 242, 255 Google Scholar.

76 The Constitution of the Russian Federation, 1993, Arts. 90 and 107.

77 Ibid., Art. 125.

78 Sharlet, Robert, “Russian Constitutional Crisis: Law and Politics Under Yel'tsin”, (1993) 9 Post-Soviet Affairs 314, at 332 CrossRefGoogle Scholar.

79 Supra n. 76, Art. 8.

80 The Political Constitution of the Republic of Chile 1980, Art. 19(24).

81 Sunstein, Cass, “Constitutionalism, Prosperity, Democracy: Transition in Eastern Europe”, (1991) 2 Constitutional Political Economy 371 CrossRefGoogle Scholar.

82 Ellis, Mark, “Drafting Constitutions: Property Rights in Central and Eastern Europe”, in “Symposium: Constitutionalism in the Post-Cold War Era”, (1994) 19 Yale J. Int'l L. 197–199 Google Scholar.

83 Supra n. 76, Arts. 135 and 136.

84 The Toronto Star, May 29, 1994; Singer, Daniel, “Yeltsin, the Lame-Duck Czar”, The Nation, May 2, 1994, at 588 Google Scholar; Sharlet, Robert, “Transitional Constitutionalism: Politics and Law in the Second Russian Republic”, (1996) 14 Wisconsin Int'l L.J. 495, at 496 Google Scholar.

85 White, Stephen, McAllister, Ian and Kryshtanovskaya, Olga, “El'tsin and his Voters: Popular Support in the 1991 Russian Presidential Elections and After”, (1994) 46 Europe-Asia Studies 285 CrossRefGoogle Scholar.

86 Pipes, Richard, “The Last Gasp of Russia's Communists”, New York Times, October 5, 1993, at A27 Google Scholar; Owen M. Fiss, “Judiciary Panel: Introductory Remarks”, in “Symposium: Constitutionalism in the Post-Cold War Era”, supra n. 82, at 1.

87 The Globe and Mail, December 13, 1993, at A2 Google Scholar.

88 Villa-Vilencio, Charles, “Whither South Africa?: Constitutionalism and Law-Making”, (1991), 40 Emory L.J. 141, at 150 Google Scholar.

89 The amending formula requires a two-thirds vote in the National Assembly, and in some cases seventy-five percent, as well as the support of six provinces: The Constitution of the Republic of South Africa, sec. 74. The African National Congress polled 62.6% of the votes in the April 1994 elections: The Globe and Mail, May 7, 1994, p. A16 Google Scholar.

90 van der Walt, Johan, “The Human Rights Debate in South Africa: A Historical and Historicist Perspective”, in de Lange, Roel, van Maanen, Gerritt and van der Walt, , eds., Human Rights and Property: A Bill of Rights in a Constitution for a New South Africa (Ars Aequi Libri, 1993)Google Scholar; Mufson, Steven, “South Africa 1990”, (1991) 70 Foreign Affairs 121 Google Scholar; Harris, Laurence, “South Africa's Economic and Social Transformation: From ‘No Middle Road’ to ‘No Alternative’”, (1993) 57 S. African Pol. Econ. 91, at 100 Google Scholar.

91 Katzen, Leo, “South Africa: Economy” in Africa South of the Sahara, (Europa Publications Ltd., 23rd ed., 1994)Google Scholar.

92 Sachs, Albie, “Towards a Bill of Rights for a Democratic South Africa”, (1989) 12 Hastings Int'l & Comp. L.R. 289, at 294 Google Scholar.

93 Steven Mufson, supra n. 90, at 137.

94 Sachs, Albie, Advancing Human Rights in South Africa (Capetown, Oxford University Press, 1992)Google Scholar.

95 E.g., the Freedom Charter contained such proclamations as: “The national wealth of our country, the heritage of all South Africans, shall be restored to the people.

The mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole.… ” in de Lange, van Maanen and van der Walt, eds., supra n. 90, at 96.

96 See, for example, the complicated property section, Art. 25 which guarantees property rights and “just and equitable” compensation “approved by a court”, in the limited circumstances permitted for expropriation, which, however, include “the nation's commitment to land reform”. The same provision commits the state to “take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”.

97 Motala, Ziyad, “Independence of the Judiciary, Prospects and Limitations of Judicial Review in Terms of the United States Model in a New South African Legal Order: Towards an Alternative Judicial Structure”, (1991) 55 Albany L.R. 367, at 383, n. 117, 384-386Google Scholar.

98 See the Court's website <http://sunsite.wits.ac.za/law/court/conjuris.html> for biographies of the judges. Albie Sachs is one of them. The tenure is a relatively long 12 years: Constitution of the Republic of South Africa, 1996, Art. 176.

99 Ibid., Art. 174.

100 Ng'ong'ola, Clement, “The Post-Colonial Era in Relation to Land Expropriation Laws in Botswana, Malawi, Zambia and Zimbabwe”, (1992) 41 Int'l Comp. L.Q. 117, at 134 CrossRefGoogle Scholar; Mazrui, Ali A., “Planned Governance and the Liberal Revival in Africa: The Paradox of Anticipation”, (1992) 25 Cornell Int'l L.J. 541, at 548–549 Google Scholar. Seven years after the constitutional guarantees had expired, Zimbabwe had yet to act on its legal right to redistribute land from the 4,000 white farmers who own half of the arable land to the 8 million black farmers who live on the other half: International Herald Tribune, January 24-25, 1998; February 16, 1998.

101 The Globe and Mail, 3 February 1992, p. A1 Google Scholar.

102 American Communications Association v. Douds 339 U.S. 382 (1950); Dennis v. United States 341 U.S. 494 (1951).

103 Brown v. Board of Education of Topeka 347 U.S. 483 (1954).

104 Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966).

105 Roe v. Wade, 410 U.S. 113 (1973).

106 A 1998 report of the Milton S. Eisenhower Foundation says that despite gains by black elites, the mass of black people in the U.S. suffer from its increasing class inequality: “The rich are getting richer and the poor are getting poorer and minorities are suffering disproportionately” (International Herald Tribune, March 2, 1998, p. 3)Google Scholar.

107 Raina Brubaker, “Missouri v. Jenkins: Widening the Mistakes of Milliken v. Bradley”, (1996) 46 Case Western Reserve L.R. 579.

108 Presser, ArLynn Lieber, “Broken Dreams”, (May, 1991) Am. Bar Association J. 60 Google Scholar. According to the report of the Eisenhower Foundation, supra n. 106: “40 percent of minority children attend urban schools, where more than half of the students are poor and fail to reach even “basic achievement levels’”.

109 Mandel, supra n. 12, at 185-91.

110 Ibid., at 229-240.

111 Mauer, Marc, “Americans Behind Bars — A Comparison of International Rates of Incarceration”, in Churchill, Ward and Wall, J.J. Vander, eds., Cages of Steel: The Politics of Imprisonment in the United States, (Maisonneuve Press, 1992)Google Scholar. “With 1.5 million prisoners, the United States incarcerates more people than any nation in the world, and one young African-American man in three is in prison, on parole or on probation”. International Herald Tribune, March 2, 1998, p. 3 Google Scholar.

112 Beal v. Doe, 432 U.S. 438 (1977); Harris v. McRae, 448 U.S. 297 (1980).

113 Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989).

114 Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992).

115 Gregg v. Georgia, 428 U.S. 153 (1976); Furman v. Georgia, 408 U.S. 238 (1972).

116 McCleskey v. Kemp, 481 U.S. 279 (1987). Blacks account for 1,349 of the 3,219 prisoners on death row. Of the 358 executions between 1977 and November 30, 1997, 200 were of black prisoners. In the first 11 months of 1997 there were 70 executions: U.S. Department of Justice, “Prisoner Executions Rise Significantly”, Press Release of December 14, 1997. <http://www.ojp.usdoj.gov/bjs/pub/press/cp96.pr>

117 Mandel, supra n. 12, at 220-228.

118 Rosenberg, Gerald N., The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 1991) at 156, 159 Google Scholar.

119 Buckley v. Valeo, 424 U.S. 1 (1976).

120 McChesney, Robert W., “The New Theology of the First Amendment: Class Privilege Over Democracy” (1998) 49 Monthly Review, No. 10, 17 at 19, 32 CrossRefGoogle Scholar.

121 Federal Election Commission v. National Conservative Political Action Committee (NCPAC), 470 U.S. 480 (1985); Geoffrey M. Wardle, “Time to Develop a Post-Buckley Approach to Regulating the Contributions and Expenditures of Political Parties: Federal Election Commission v. Colorado Republican Federal Campaign Committee”, (1996) 46 Case Western Reserve L.R. 603.

122 Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

123 Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors Inc. v. Federico Pena, Secretary of Transportation et al. 115 S.Ct. 2097 (1995); Douglas-Scott, Sionaidh, “Affirmative Action in the U.S. Supreme Court: The Adarand Case — The Final Chapter?”, (1997) Public Law 43 Google Scholar.

124 Stephen M. Griffin, supra n. 55, at 116.

125 Mandel, Michael, “Legal Politics Italian Style”, in Tate, C. Neal and Vallinder, Torbjorn, eds., The Global Expansion of Judicial Power (New York University Press, 1995) 261, at 268–272 Google Scholar.

126 Stone, Alec, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford University Press, 1992) Chapter 3Google Scholar; Cole, Alistair, Frangois Mitterand. A Study in Political Leadership (Routledge, 2nd ed., 1997) 34 Google Scholar.

127 Stone, Alec, “Judging Socialist Reform: The Politics of Coordinate Construction in France and Germany”, (1994) 26 Comp. Political Studies 443 CrossRefGoogle Scholar.

128 RJR-MacDonald Inc. v. Canada (Attorney General), (1995), 127 D.L.R. (4th) 1.

129 Black v. Law Society of Alberta (1989), 58 D.L.R. (4th) 317.

130 Michael Mandel, supra n. 12, at 264-288.

131 Merillat, H.C.L., Land and the Constitution of India (Columbia University Press, 1970)Google Scholar; Morris-Jones, W.H., “The Politics of the Indian Constitution (1950)”, in Bogdanor, Vernon, ed., Constitutions in Democratic Politics (Gower, 1988)Google Scholar.

132 Panish, Neal P., “Chile Under Allende: The Decline of the Judiciary and the Rise of a State of Necessity”, (1987) 9 Loy. L. A. Int'l & Comp. L.J. 693 Google Scholar.

133 Schwarz, Carl, “Judges Under the Shadow: Judicial Independence in the United States and Mexico”, (1973) 3 Calif. W. Int'l L.J. 260 Google Scholar.

134 Meyer, Michael C. and Sherman, William L., The Course of Mexican History (Oxford University Press, 1991)Google Scholar; Russell, James W., “Mexico's Rising Inequality”, (1997) 49 Monthly Review, No. 7, at 28 CrossRefGoogle Scholar.

135 Constitution of the Republic of Cuba 1976 (as amended), Art. 75(c).

136 Keen, Benjamin, ed., Latin American Civilization: History and Society, 1492 to the Present, (Westview Press, 6th ed., 1996) 392 Google Scholar; “Women's Equality in Cuba: What Difference Does a Revolution Make?”, (1986) 4 Law and Inequality 295 Google Scholar; International Herald Tribune, April 22, 1998, p. 1 Google Scholar.

137 Mandel, supra n. 24, at 272-276.

138 Osuka, Akira, “Welfare Rights” in Luney, Percy R., JrTakahashi, Kazuyuki, eds., Japanese Constitutional Law, (University of Tokyo Press, 1993) 269 Google Scholar. The general passivity of the court, punctuated by the occasional defence of property rights, is usually attributed to its seeing eye-to-eye with the conservative LDP governments that have ruled Japan since the war. See Yasuhiro Okudaira, “Forty Years of the Constitution and Its Various Influences: Japanese, American and European”, ibid., at 24 and Mutsuo Nakamura, “Freedom of Economic Activities and the Right to Property”, ibid., at 255.

139 Soobramoney v. Minister of Health (KwaZulu-Natal), CCT 32/97 (Constitutional Court, 26 November 1997), where the textually unqualified “right to life” was held to be subject to available resources in a kidney dialysis case. The constitution also explicitly makes many of the social rights subject to “reasonable legislative and other measures, within … available resources, to achieve the progressive realisation of this right”. The Constitution of the Republic of South Africa 1996, (sec. 27 — Health care, food, water and social security).

140 Ball, Carlos A., “The Making of a Transnational Capitalist Society: The Court of Justice, Social Policy, and Individual Rights Under the European Community's Legal Order”, (1996) 37 Harv. Int'l L.J. 307 Google Scholar; Weatherill, Stephen and Beaumont, Paul, EC Law (Penguin Books, 1993) 432 Google Scholar.

141 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and European Social Charter (1950); Harris, David, The European Social Charter, (University Press of Virginia, 1988)Google Scholar. Neither the International Covenant on Civil and Political Rights nor the International Covenant on Economic and Social Rights, administered by the United Nations, rises above unenforceable soft law. See Conforti, Benedetto, The Law and Practice of the United Nations (Kluwer, 1996) at 137–140 Google Scholar.

142 Attorney General of Québec v. Québec Protestant School Boards, (1984), 10 D.L.R. (4th) 321 (Supreme Court of Canada).

143 Calamandrei, Piero, “Cenni introduttivi sulla costituente e sui suoi lavori”, in Bobbio, Norberto, ed., Piero Calamandrei, Scritti e discorsi politici, (La Nuova Italia, Vol. 2, 1966), 461–462 (my translation)Google Scholar.

144 Silvia, Stephen J., “The Social Charter of the European Community: A Defeat for European Labour”, (1991) 44 Industrial and Labor Relations R. 626 Google Scholar.

145 Mandel, supra n. 12, at 354-369.

146 Vargas, Jorge A., “Mexico's Legal Revolution: An Appraisal of Its Recent Constit Itional Changes, 1988-1995”, (1996) 25 Ga. Int'l & Comp. L. 497, at 546–548 Google Scholar. “Mexico Gets Chiapas Bill,” International Herald Tribune, March 17, 1998, p. 3 Google Scholar.

147 Mandel, supra n. 12, at 109-112, 124-125.

148 MacAskill, Ewen and Black, Ian, “Cook Sets New Tone on Europe”, The Guardian, May 5, 1997 Google Scholar.

149 See the Human Rights Bill [H.L.] 1998.

150 Commissione Bicamerale, Testo approvato il 4 novembre 1997: Progetto di Legge Costituzionale.

151 Russell, Peter H., Constitutional Odyssey (University of Toronto Press, 1992)Google Scholar.

152 Kommers, Donald, The Constitutional Jurisprudence of the Federal Republic of Germany, (Duke University Press, 2nd ed., 1997), at 222–224 Google Scholar.

153 Schwarz, supra n. 32.

154 Galleher, Watson W., “State Repression's Facade of Legality: The Military Courts in Chile”, (1988) 2 Temp. Int'l & Comp. L.J. 183 Google Scholar.

155 Fiss, Owen M., “The Limits of Judicial Independence”, (1993) 25 Inter-American L.R. 1, at 75 Google Scholar.

156 Mandel, supra n. 12, at 127-176.

157 Mandel, supra n. 125, at 273.

158 Kommers, supra n. 152, at 335-356.

159 Ibid., at 291-295.

160 Mandel, supra n. 12, at 399-405, 443-452.

161 Mandel, supra n. 125, at 273. A recent decision of the Italian Constitutional Court struck down as “unreasonable” the exclusion of new couples with children from the special list for access to public housing, which was formerly restricted to new couples without children. The decision no doubt expanded the special list, but it did nothing to increase “the limited availability of residential public housing which renders very difficult, in concrete terms, its assignment to those who are only on the general list”. The gain of these couples would have to be at the expense of others similarly situated. Sentenza 18 febbraio 1998, No. 17 Gazzetta Ufficiale della Repubblica italiana, Anno 139 — Numero 8 at 18 (my translation).

162 The Indian Supreme Court opposed affirmative action in education as early as 1962: W.H. Morris-Jones, supra n. 131, at 135.

163 Corte costituzionale, Sentenza 12 settembre 1995, n. 422; Conseil costitutionnel, decision no. 82-146, 18 November 1982 (reproduced in Bell, John, French Constitutional Law, (Oxford University Press, 1992) 349–352 Google Scholar.

164 Mandel, Supra n. 12, at 383-389.

165 “Women Win Job Ruling”, Guardian Weekly, November 23, 1997 Google Scholar.

166 Kommers, supra n. 152, at 382-387.

167 Faurisson v. France, (1996) 17 Human Rights L.J. 253.

168 Mandel, supra n. 12, 369-376.

169 Mandel, supra n. 12, 240-257; supra n. 125, at 276-279.

170 Heilbronner, Kay, “The Concept of “Safe Country” and the Expeditious Asylum Procedures: A Western European Perspective”, (1993) 5 International Journal of Refugee Law 46–48 Google Scholar; Soltesz, Susan, “Implications of the Conseil Consitutionnel's Immigration and Asylum Decision of August 1993”, (1995) 18 Boston College Int. & Comp. L.R. 265 Google Scholar; “Germany Turns Back Would-Be Refugees”, The Globe and Mail, July 2, 1993, p. 1 Google Scholar.

171 I remember well watching a clip from a Senate debate on Italian television shortly after Giovanni Agnelli, the hereditary owner of FIAT, had been made Senator for Life. Because of his enormous economic power, Agnelli has for the longest time been a powerful force in Italian politics, to be courted by politicians at every opportunity. But, at this moment in the Senate, when Senators were scrambling around in various grouplets before an important vote, I remember being amazed (and, I confess, delighted) to see how poor and forlorn Agnelli looked as he was virtually ignored by the experienced politicians. He had been effectively cut down to size in this forum of one-person-one-vote, where his economic power was, for the time being, irrelevant.

172 Dworkin, supra n. 14, at 27.

173 McChesney, supra n. 120, at 32.

174 Herman, Edward S. and McChesney, Robert W., The Global Media: The New Missionaries of Corporate Capitalism (Cassell, 1997) 147 Google Scholar.

175 Dworkin, supra n. 14, at 18.

176 Dworkin, supra n. 14, at 10-11.

177 Pashukanis, Evgeny B., Law and Marxism: A General Theory, (Pluto Press, 1989) 149, n. 21Google Scholar.

178 Attributed to Maximilien Harden (1861-1927) by Eyck, supra n. 23, Vol. II at 416.