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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).

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“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.

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

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13 Supra n. 5, at 120.

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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.

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22 Ibid., at 83-85.

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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.

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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.

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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.

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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.

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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.

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

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

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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).

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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.

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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.

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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.

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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.

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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>

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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.

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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).

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

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

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153 Schwarz, supra n. 32.

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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.