Podcasts: Foreign Law and the US Constitution (Gonzalez) / Subsidiarity in the EU (Maduro et al)

Two interesting podcasts on two topical constitutional themes in Europe and the US.

One comes from the University of Chicago's Law Faculty Weblog and is an audio-recording of a speech US Attorney-General Gonzalez gave there on the use of foreign law by the US Supreme Court in interpreting the US Constitution. (have a look here for the MP3 file)

A second podcast is a video file of a conference organized in the framework of the UK's EU Presidency on November 17th (in The Hague) on Subsidiarity in the EU. The entire conference can be seen here. Have a look especially at the lecture by ECJ Advocate General Maduro (Afternoon, Session 3).

Inside China's Judiciary

The NY Times has this extensive look inside China's 'new' judiciary.

Posner's Foreword and the 'protective coloration' of nonconstitutional jurisdiction

Just a quick thought on the Posner Foreword (see below) and its relevance to European practice. I was struck by this passage on the Supreme Court's handling of nonconstitutional cases:

(...)The Justices would be reluctant to relinquish their nonconstitutional jurisdiction. (...) Nonconstitutional cases provide protective coloration. Not because there aren't plenty of indeterminate statutory cases, especially in the sample that reaches the Supreme Court, but because no one doubts that a court is "doing law" when it is deciding statutory cases. Since the style of the Court's constitutional opinions is similar to that of its statutory opinions, the impression is created that even when deciding constitutional cases the Justices are doing law, and hence that the Supreme Court really is just another court, doing what normal courts do. Thus, paradoxically, the Court's agressiveness in constitutional decisionmaking retards the emergence of the dual system found in so many other countries.

Think of this statement in relation to the ECJ. As authors such as professor Lasser have shown, the ECJ escalates even its most mundane technical cases to decisions of great constitutional importance. There are few areas of its jurisdiction in which the ECJ has not frequently referred to large overarching themes of European integration and the construction of a European legal order, even in cases of seemingly minor direct constitutional importance. This seems diametrically opposed to the 'protective colloration' thesis described here by Posner.

Another main theme of the Foreword is the Supreme Court's use of foreign legal materials. I refer to Roger Alford's analysis here of the discussion on this topic in the Foreword and in three other important articles in the same issue of the Harvard Law Review.

Sunstein on Breyer / Posner on the Supreme Court 2004 Term

Professor Cass Sunstein (Chicago) has this new workingpaper on "Justice Breyer's Democratic Pragmatism". Here is the abstract:

There have been many efforts to reconcile judicial review with democratic self-government. Some such efforts attempt to justify judicial review if and to the extent that it promotes self-rule. Active Liberty, by Justice Stephen Breyer, is in this tradition; but it is also marked by a heavy pragmatic orientation, emphasizing as it does the need for close attention to purposes and to the importance of consequences to legal interpretation. Its distinctiveness lies in its effort to forge close connections among three seemingly disparate ideas: a democratic account of judicial review; a purposive understanding of legal texts; and a neo-pragmatic emphasis on consequences. Breyer's argument is convincing insofar as it challenges "originalist" approach on pragmatic grounds. It is more vulnerable insofar it downplays the inevitable role of judicial discretion in the characterization of purposes and the evaluation of consequences. Those who emphasize consequences, and active liberty, might well end up embracing textualism, or even broad judicial deference to legislative majorities. Moreover, it is not simple to deduce, from the general idea of "active liberty," concrete conclusions on the issues that concern Breyer, such as affirmative action, campaign finance reform, privacy rights, and commercial advertising. Many competing approaches to these issues, and to interpretation as a whole, can also march proudly under the pragmatic banner.

Professor (and Judge) Richard Posner has written this year's Foreword to the Harvard Law Review Supreme Court issue, which can be found here. Entitled "A Political Court", it claims just that; that the Supreme Court, in most of the cases it decides, acts like a political institution. The Harvard LR Forewords generally are essential reading for those interested in developments in US constitutional law, so have a look (72 pages).

Quantitative limitations on anti-terrorism measures?

The Economist this week has an article on characteristics of the (UK) Labour government's lawmaking as a response to terrorist threats. One the features mentioned: repeated assurances from government and police forces that new powers will be used with moderation. The paper writes:

"It is now routine for the attorney-general or the director of public prosecutions to promise that a sweeping new power will not be used in a sweeping way. Such pledges were made for Anti-Social Behaviour Orders and control orders. this week, Mr Blair insisted that only a "very small"number of suspects would be held without charge for up to 90 days. (...) Such promises tend to be kept - for a while."

The article proceeds with a description of how the new measure of 'control orders' has been deployed "against protesters, beggars, prostitutes and the mentally ill". This phenomenon of increased use of powers once granted is obviously not limited to the United Kingdom.

Governmental credibility is a serious problem here. Even those in parliament and public who would generally approve of stricter measures for severe cases, will be reluctant to offer their support of broad powers with unclear qualifications. Generally, independence for key-decisionmakers is a way out of credibility conundrums (look at central banks) and here too, independent oversight - by the judiciary - should be the preferred solution.

For the special case of measures applicable before any judicial oversight becomes available, such as the proposed 90-day detention before charges now defeated in the House of Commons, a specific credibility enhancing solution could be envisaged in the form of quantitative limitations on special powers. Would it not be possible to allocate a certain number of pre-charge detainment rights to police authorities, for use in cases they select? Once these rights would have been exhausted, only detention under the standard regime would remain possible. I realize it would be important to implement such a system without the possiblity of terrorists knowing in advance whether or not sufficicient rights remain for their detention, but this is a practical problem that could be overcome. Anyway, this may be an utterly foolish idea so I'm looking forward to comments.

Leyla Sahin v. Turkey: ECHR Grand Chamber Judgment

Yesterday, the Grand Chamber of the European Court of Human Rights delivered its judgment in Leyla Sahin v. Turkey, in which it upheld a ban on wearing the Islamic headscarf at Turkish universities. Felix Ronkes Agerbeek posted the following text (à titre personnel); thanks for that. I've added a few observations of my own below. (Added 15/11: some further thoughts from Felix now appear as a comment to this post)

In Turkey, wearing a veil or headscarf in higher-education institutions on grounds of religious belief is considered contrary to the principles of secularism and equality. Universities accordingly apply certain dress-codes for their staff and students. Leyla Sahin was a medical student at the University of Istanbul who was denied access to lectures, courses and two written exams because she was wearing an Islamic headscarf. The ECtHR held that this did not constitute a violation of the Convention (focusing foremost on Article 9 thereof, which guarantees the freedom of thought, conscience and religion). The Grand Chamber essentially confirmed the judgment of 29 June 2004 of the Fourth Section of the ECtHR. Yesterday's judgment closely resembles that decision.

Just like the Fourth Section, the Grand Chamber pays close attention to the social context of the ban on wearing the Islamic headscarf. When assessing whether there was a pressing social need for the interference with the right to freedom of religion, the Grand Chamber simply repeats the core of the reasoning of the decision of June 2004:

...when examining the question of the Islamic headscarf in the Turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. ... [T]he issues at stake include the protection of the "rights and freedoms of others" and the "maintenance of public order" in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since ... this religious symbol has taken on political significance in Turkey in recent years.

... The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts...

... The regulations concerned have to be viewed in that context and constitute a measure intended to achieve the legitimate aims referred to above and thereby to preserve pluralism in the university.

Emphasising the national authorities' margin of appreciation the Court decides - by sixteen votes to one - that there has been no breach of Article 9 ECHR.

The dissenting opinion is from judge Tulkens (Belgium). She criticises two arguments which the Court uses to justify the large margin of appreciation left to the Turkish authorities, namely diversity of Member State practice and Turkey's specific historical background. According to her "the comparative-law materials do not allow [of the conclusion that there is a lack of a European consensus in this sphere], as in none of the member States has the ban on wearing religious symbols extended to university education, which is intended for young adults, who are less amenable to pressure." She argues that, because of the extensive reference to Turkey's specific historical background, "European supervision seems quite simply to be absent from the judgment". She also notes that, according to her, "it is necessary to seek to harmonise the principles of secularism, equality and liberty, not to weigh one against the other" and that "it has been neither suggested nor demonstrated that there was any disruption in teaching or in everyday life at the University, or any disorderly conduct, as a result of the applicant's wearing the headscarf". Although she "agrees on the need to prevent radical Islamism" she observes that "[m]erely wearing the headscarf cannot be associated with fundamentalism and it is vital to distinguish between those who wear the headscarf and "extremists" who seek to impose the headscarf as they do other religious symbols. Not all women who wear the headscarf are fundamentalists and there is nothing to suggest that the applicant held fundamentalist views." Hence, she considers that the interference with Sahin's right to freedom of religion was not "necessary in a democratic society" and that there was a violation of Art 9 ECHR.

The wearing of the Islamic headscarf in public institutions has given rise to debate in many other European countries, notably in France, where the principle of secularism is enshrined in Article 1 of the Constitution. A law was adopted in March 2004 prohibiting pupils from wearing signs or clothing in public schools, by which they overtly manifest a religious affiliation (Law No. 2004-228). A measure implementing that law was deemed in conformity with the freedom of expression by the French Conseil d'État in a decision of 8 October 2004. In a decision of December last year, the French Conseil Constitutionnel underlined the importance of the constitutional principle of secularism, referring expressly to the decision of the Fourth Section of the ECtHR in Leyla Sahin v Turkey (Decision No. 2004-505 DC).

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This is an important judgment, and Felix is very right to draw attention to the Court's ruling, in particular its use of the comparative law / lack of consensus argument. A few other aspects of the decision are perhaps worth mentioning as well:

*The Court frequently refers to the legitimate aim of 'protecting the rights and freedoms of others'. Several of the cases cited can be placed in this category, in particular the judgments of Chassagnou v. France and Young, James and Webster v. United Kingdom. The invocation of this legitimate aim and the passages from these cited cases, however, is highly problematic in the Sahin case, for two related reasons: (1) At issue in Sahin are not the rights and freedoms of others (those who feel threatened in the exercise of their freedom of religion by the wearing of scarves by others?) but the perceived threat to the structure and survival of the Turkish Republic as a whole; (2) The Sahin case does not concern the domination of a (religious) minority by an intolerant majority as a large majority of people in Turkey adheres to the Muslim faith.

A closer look at the cited cases - where the rights of others and the risk of inadequate protection of minorities were indeed at issue - underscores these points. Chassagnou concerned the rights of French farmers to object to hunting on their grounds, expressed a.o. in the form of their right to object to an obligation to join an association for the benefit of hunting on private lands; the Young case also concerned the right to freedom of association (art. 11), more specifically the right to refuse compulsory membership of trade-unions. These context gave rise to observations that are now reproduced in Sahin, a.o. as "a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position" and the need for a "constant search for a balance between the fundamental rights of each individual". Viewing the issues in Sahin through the lenses of (a) the protection of minorities and (b) the 'rights' of individuals in the majority, is not only unhelpful, but could even be dangerous.

*The Court's assessment, as happens more often, hovers uncomfortably between concrete review and review in abstracto. One the one hand, the highly individualized question of whether Leyla Sahin was adequately warned of the restrictions in force is addressed, while on the other hand it is absolutely clear that what is truly at issue is a general ruling by the Convention mechanism on a crucial nationwide policy in a Member State.

Latest Issue EJCL

The latest issue of the Electronic Journal of Comparative Law (volume 9, issue 3) can now be found here. The journal is published by a cooperative effort of the Dutch universities of Maastricht, Tilburg and Utrecht. The extensive archive (going back to 1997) is freely accessible online. Well worth a look.

Courts and Allocative Decisions

This week, both Dutch media (here and here) and the Guardian in the UK (here, see also their last month's story here) had reports on the impact of financial constraints on the chances of cancer patients to receive expensive, but highly effective, new drugs. It seems that a whole new generation of cancer drugs is arriving on the market, offering vastly improved perspectives for patients, but at a price. It also seems that, as governments have largely delegated spending decisions to hospitals and insurers, pressure on specialists 'on the ground' has increased dramatically. New data now show significant differences in the levels of provision of these new drugs among hospitals and even among countries (the Netherlands scoring particularly weak internationally). Against this background, it is unsurprising that patients are beginning to turn to the courts for protection, as has now happened in the UK.

Delegation of authority to specialists and market forces makes sense in this area, but the questions now raised have such an important political dimension that it seems parliaments should get involved. General principles applicable to the allocation of life saving medicine should be decided upon explicitly and visibly, by democratically accountable legislatures.

The alternative is for the courts to get involved. Judicial review of allocative decisions is of course not new, but remains a very difficult task. For a helpful overview of earlier rulings (UK) and the problems encountered therein, you could have a look at this online paper by Keith Syrett of Norwich Law School (2000), entitled "Of resources, rationality and rights: emerging trends in the judicial review of allocative decisions". A comparative study of methods used in judicial decisions on the allocation of resources could probably be very helpful. It's easy to think of some of the issues involved: Should courts treat 'allocative decisions' differently from other executive action? If so, how could 'allocative decisions' be defined? Should one focus on the claimed motives (financial constraints) or rather on the redistributive impact of decisions? Answers, of course, are a bit more complicated.

Update 30/11/05: Have a look at new research reported in The Guardian.

Dworkin on Roberts

My colleague Henk Griffioen drew attention to this article by Ronald Dworkin on (now) Chief Justice Roberts in the New York Review of Books. Dworkin's view: the US Senate has acted irresponsibly by allowing Roberts "to keep his jurisprudential convictions, if he has any, almost entirely hidden".

Is 'marriage' at the heart of Judge Alito's judicial philosophy?

Lots is obviously being written about what Judge Samuel Alito's track-record of decisions says about how he is likely to rule in future cases before the Supreme Court. (Juris Novus has an extensive overview of blogposts). One particularly interesting emerging theme is Mr. Alito's definition of marriage, which Adam Liptak in the New York Times argues could be at the heart of the nominee's judicial philosophy. If true, this could have important ramifications for future cases.

Liptak writes that Alito's traditional, restrictive view of marriage, which can be gathered from several of his decisions on asylum for partner's of women forced to undergo an abortion abroad, could become highly important on the Supreme Court. Immigration rules grant asylum rights to husbands of women forced to undergo abortions and the question arose whether such rights should be extended to non-married partners. According to the NY Times:

"Last year, Judge Alito, writing for a unanimous three-judge panel, declined to extend that decision to boyfriends and fiancés. The petitioner in the case, Cai Luan Chen, argued that he would have married his fiancée but for, as Judge Alito's decision put it, "China's inflated minimum marriage age requirement, which was instituted as part of the country's oppressive population control program." (The minimum age for men to marry in China is 22.) Judge Alito expressed some sympathy for the argument but concluded that marriage was a categorical status that was easily applied to particular cases and was central to many distinctions made in the law."

This decision could be indicative of a number of judicial philosophies. Substantively, both restrictive views on immigration rights and a traditionalist approach to marriage could have informed the judgment. As to form, both textualism and a preference for legal certainty (rules over standards) could be at work. If it is indeed the traditional view of marriage that is central to Judge Alito's ruling, there are many important possible implications. For one thing, his much discussed dissent in Planned Parenthood v. Casey (in which he ruled that Pennsylvania could require women to notify their husband's of a prospective abortion) could be informed as much by the desire to protect the institution of marriage as by a negative view of abortion as such. This should be encouraging for liberals who hope Roe v. Wade will not be overturned. Liberals are, on the other hand, much less likely to be enthusiastic about the implications of this same view of marriage for cases involving gay rights, that are sure to come up before the Supreme Court in the near future.

All Judge Alito's previous rulings can be found on Michigan University's website here.

Opinio Juris has interesting comments on Judge Alito's views on the use of comparative and international legal materials by US courts, insofar as they appear from his rulings.