JJUA55272U Making and Breaking Constitutions

Volume 2021/2022
Content

The course Making and Breaking Constitutions draws on contemporary constitutional developments, cases and controversies that have in recent years put domestic constitutions around the world to a test. We will cover contentious topics, such as abusive constitutionalism and decisions of various constitutional courts on unamendability.

 

Although you might be familiar with the idea of breaking constitutional law in the traditional sense, which describes an action contrary to the constitutional rules. This course is not about ordinary political actors during the course of normal politics. The course focuses on how amending actors and constitutional drafters make, unmake, change, and break constitutions.

 

The course deals comparatively with constitutional texts, their design, and shortcomings. You will learn about foundational concepts, institutions, and ideas that underpin the architecture of a modern constitutional state. We will analyze these concepts to examine interesting real-world but also hypothetical scenarios, such as a constitutional amendment abolishing regular holding of the election, packing courts, and disabling essential checks and balances.

 

Although the course is primarily advertised for MA students, it is also open to interested BA students, provided that they already had a general course on constitutional law. The course takes on advanced theories but is designed so that even students with little previous knowledge should keep up.

 

Students are expected to read the required reading beforehand to discuss the material in the class. We will primarily work with the book by Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (OUP 2019). Classes will also be taught based on selected research articles. Students will also be provided with optional reading to delve deeper into topics of their interest.

 

The course is structurally divided into three segments:

 

  • Part I on Comparative Matters, provides students with a theoretical baseline of the origins, nature, issues and methodology of comparative public law, as well as the origins and typology of constitutions. Some of the students might not be familiar with the comparative method. This first part of the course will ensure that all students understand why and how do we compare constitutions?

 

  • Part II on Constitutions, Constitution-making, and Change examines in a comparative context what do constitutions constitute and how are they made. We will cover the theory of constitutional amendment so that we may later understand abusive constitutional change. We will look closely at seminal work on the subject, such as Jon Elster's work on constitution-making and the scholarship of other intellectual giants in the field.

 

  • Part three, on Breaking Constitutions, examines the theory of unconstitutional amendments, abusive constitutional practice, back-sliding. We will look at challenges to modern constitutions to understand how they may fail. We will cover the concepts of dismemberment, abusive constitutionalism and look at potential remedies either via judicial review of constitutional change or transnational assistance to improve the amendment process.

 

Provisional syllabus (subject to change):

  1. Introduction: Constitutional types
  2. Methods: Why and what do we compare?
  3. Constitution-making
  4. Constitutional endurance
  5. Constitutional amendment
  6. Design of amendment procedures
  7. Informal constitutional change
  8. Dismemberment and unamendability
  9. Abusive constitutionalism
  10. Judicial review of amendments
  11. Transnational constitution-making
Learning Outcome

Knowledge:

  • Knowledge about foundational concepts, principles, ideas, and institutions in constitutional theory
  • Knowledge about the comparative-legal method
  • Knowledge about a broad set of world constitutions, including how they practically regulate constitutional change
  • Knowledge about the basic structure of a constitutional design

 

Skills:

  • Ability to identify and analyse differences between legal systems
  • Ability to construct a legal argument based on comparative law
  • Ability to critically discuss constitutional change, entrenchment, referendum and other institutions
  • Ability to critically discuss the relationship between various constitutional institutions and principles
  • Ability to find the answers to legal questions of constitutional theory
  • Ability to analyse and discuss the reasons for the adoption of specific constitutional design and institutions

 

Competences:

  • Ability to apply the comparative-legal method to new problems and solve important legal questions
  • Ability to identify shortcomings and coherence in comparative constitutional design
  • Ability to reflect critically on other legal systems
  • Ability to design and implement legal solutions for a system based on comparative best practice and experience
  • Farrah Ahmed and Adam Perry, “Constitutional Statutes” (2016) Oxford Journal of Legal Studies (2016) available at SSRN: https:/​/​ssrn.com/​abstract=2743936
  • Richard Albert, “Constitutional Amendment and Dismemberment” (2018) 43 Yale Journal of International Law, available at SSRN: https:/​/​ssrn.com/​abstract=2875931
  • Richard Albert, “How a Court Becomes Supreme” (2017) 77 Maryland Law Review
  • Richard Albert, “How Unwritten Constitutional Norms Change Written Constitutions” (2015) 38 Dublin University Law Journal, available at SSRN: https:/​/​ssrn.com/​abstract=2628460
  • Tom Ginsburg, “Constitutional Endurance” in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (2011 Edward Elgar), available at SSRN: https:/​/​ssrn.com/​abstract=1899636
  • Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (2009 CUP) Chapter 3 *will be made accessible by the course teaches
  • Aziz Z. Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy” (2018) 65 UCLA Law Review, available at SSRN: https:/​/​ssrn.com/​abstract=2901776
  • David Landau, “Abusive Constitutionalism” (2013) 47 UC Davis Law Review, available at SSRN: https:/​/​ssrn.com/​abstract=2244629
  • Yaniv Roznai, “Towards a Theory of Unamendability” (2018) NYU Public Law Research Paper No. 12, available at SSRN: https:/​/​ssrn.com/​abstract=2569292
Fluency in English.
Students will present on the design of their domestic constitutional systems, selected cases and controversies, work in groups and discuss. Kahoot and other tools will be used to activate students. The lecturer will use presentations and handouts. For the first class, I ask that you come prepared, knowing the rules for constitutional change in your jurisdiction.
  • Category
  • Hours
  • Preparation
  • 178,25
  • Seminar
  • 28
  • Total
  • 206,25
Written
Oral
Collective
Continuous feedback during the course of the semester
Feedback by final exam (In addition to the grade)

Students will receive feedback throughout the course on assignments and other writing, as well as their presentations. Finally, students will receive feedback on their exam, which takes the form of an individual written assignment.

Credit
7,5 ECTS
Type of assessment
Written assignment
Individual written assignment

The exam takes the form of an individual written assignment, which will be graded by the lecturer based on the understanding of concepts and theories discussed in the class, their application to the student's case study, consistency and completeness of the argument. The assignment will be submitted online through the electronic exam submission platform. A paper written by an individual student should have maximum of 17,600 keystrokes based on the exam catalogue. For more information on the exam, consult the catalogue.
Marking scale
7-point grading scale
Censorship form
No external censorship
Exam period

hand-in date: January 5, 2022

Re-exam

hand-in date: February 4, 2022