Dublin University Law Journal (DULJ) Vol 38(2)

Abstracts 

Constitutionalism: Negative and Positive | NW Barber

Constitutionalism is a term that is often found in the title of books and articles, but is rarely considered in their texts. By and large, it is assumed that we know what constitutionalism entails, and that there is no need to examine it further. Constitutionalism is treated as a synonym for the legal enforcement of constitutional rules, or – perhaps – a subset of those rules; it is regarded as a desirable, maybe even a necessary, feature of a constitutional order. Attention swiftly turns to the practical difficulties involved in ensuring the effectiveness of these legal constraints. This paper challenges this simple understanding of constitutionalism, arguing those who see constitutionalism entirely in terms of constraints on state power miss an important aspect of the doctrine. Constitutionalism also requires the creation of an effective and competent set of state institutions; it has a positive dimension.

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Constitutional Conventions and the Economic Crisis: The Italian Paradigm | Lorenzo Cuocolo

This article investigates the relationship between constitutional conventions and economic factors. After an explanation of the main doctrines and theories about conventions and customs, and their different meanings in the comparative arena, the attention is focused on the role that constitutional ‘practices’, ‘conventions’ and ‘customs’ have in shaping the Italian form of government. The central part of the paper focuses on the relationship between constitutional customs and the economic crisis and, particularly, on the role that the new great crisis has played in changing customs related to the design of the form of government, with particular reference to the Italian case.

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Conventions in Court | Adrian Vermeule

In the Commonwealth nations, a constitutional ‘convention’ denotes an unwritten but obligatory constitutional custom or norm. The question I will address is whether public law in the United States should be understood to permit, require or forbid federal courts to incorporate conventions into their decisions. My major claim is that public law should adopt an approach that has achieved consensus status in the United Kingdom and Commonwealth – what I will call the ‘modern Commonwealth view’. This approach holds that while courts may and should recognise conventions, they may not and should not enforce them. The main strength of the modern Commonwealth view is that it is not either of two other leading views, which I will call the “classical Diceyan view” and the ‘incorporationist view’ respectively. I will argue that the two competing views are untenable and undesirable, and that the modern Commonwealth view triumphs faute de mieux – for lack of a better, or even any feasible, alternative. Moreover, I will claim that in important cases, especially recent cases, the US Supreme Court has implicitly moved toward just this approach.

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Conventional Constitutional Law  | Oran Doyle

Judges share conventional understandings about what the Constitution requires, both of themselves and of other constitutional actors. These informal conventions lead to formal decisions, which are then centrally enforced by the state in the same manner as all other judicial decisions. This recognition of conventional constitutional law has three critical implications for our understanding, critique and reform of constitutional law. First, it is unlikely that judges will refer explicitly to their own conventions in their decision-making; however, scholars cannot provide an accurate explanation of constitutional law if they do not account for the possible role of conventional constitutional law. Second, although there is nothing inherently objectionable in conventional law, it is problematic that the interaction of conventional and written constitutional law allows the conventions of a judicial and legal elite attain the force of law for other people. Third, in some circumstances, it may be more effective to change constitutional law by changing how we select judges than by formally amending the text of the Constitution.

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Constitutional Conventions and Written Constitutions: The Rule of Law Implications in Canada | Andrew Heard

Canada shares an ironic situation with many other countries with written Constitutions: the rule of law is praised while political actors ignore the law. Constitutional conventions at times permit, and on occasion require, public officials to act in ways other than what is detailed in law. In examining the consequences for the rule of law of constitutional conventions and unwritten principles, this paper will focus on the role and nature of constitutional conventions, their relationship to both unwritten constitutional principles and the formal Constitution, and the problems in either drawing from or ignoring them in judicial decisions. This focus provides a window on the importance of unwritten rules and principles in political systems with a formal Constitution.

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The Proper Roles for Constitutional Conventions | Joseph Jaconelli

This article poses the question of what aspects of governance, ideally, should be regulated by constitutional convention rather than by constitutional law. Based largely on the experience of the UK constitution, it offers for consideration six features which render an area more appropriate for regulation by convention than by law. This is preceded by a restatement of the essential features of constitutional conventions, in particular a critique of recent attempts to elide the fundamental distinction between them and constitutional law.

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How Unwritten Constitutional Norms Change Written Constitutions | Richard Albert

Written constitutions are susceptible to informal changes that do not manifest themselves in alterations to the text, for instance as a result of judicial interpretation, legislative enactment or executive action. This phenomenon is well developed in the scholarly literature on informal constitutional amendment. But what remains understudied and undertheorised in Canada and the United States is how written constitutions change informally as a result of the development of an unwritten constitutional norm, otherwise known as a constitutional convention. In this Article, I hypothesise with reference to the Canadian and United States Constitutions that there exist two major categories of informal constitutional change by constitutional convention: incorporation and repudiation. I suggest also that incorporation and repudiation may each occur in two ways: incorporation may occur by filling an existing void in the constitutional text or by refining one of its existing provisions, and repudiation may result from creating a void in the constitutional text or from substituting one of its existing provisions. I then evaluate whether these four forms of informal constitutional change by constitutional convention entail costs for the rule of law where constitutional meaning is rooted in the present public meaning of the constitutional text. My larger purpose in this Article is to invite a dialogue with comparative public law scholars on how unwritten constitutional norms change written constitutions so that we may ultimately better understand the forms and implications of unwritten constitutional change.