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Discussion

Access_open Europe Kidnapped

Spanish Voices on Citizenship and Exile

Journal Netherlands Journal of Legal Philosophy, Issue 1 2019
Keywords migration, exile, citizenship, Europe, Spanish civil war
Authors Massimo La Torre
AbstractAuthor's information

    Exile and migration are once more central issues in the contemporary European predicament. This short article intends to discuss these questions elaborating on the ideas of two Spanish authors, a novelist, Max Aub, and a philosopher, María Zambrano, both marked by the tragic events of civil war and forced expatriation. Exile and migration in their existential perspective are meant as a prologue to the vindication of citizenship.


Massimo La Torre
Massimo La Torre is Professor of Legal Philosophy, Magna Græcia University of Catanzaro (Italy).
Article

Split Offer and Homogeneous Response in Belgium

The Conceptual and Empirical Limitations of (De)Nationalization

Journal Politics of the Low Countries, Issue 2 2019
Keywords (de-)nationalization, voting behaviour, party offer, voter response, methodological nationalism
Authors Luana Russo, Kris Deschouwer and Tom Verthé
AbstractAuthor's information

    By examining the Belgian case, this article aims to show that methodological nationalism is strongly present in the literature on nationalization of party offer and voting behaviour. In nationalization studies, Belgium is often presented as a typical example of a denationalized country. This is true for the party offer, as it is de facto split between the two language groups since the 1980s, and therefore also voter response at the national level. However, voter response within each separate subnational party system is very homogeneous and shows interesting differences between these party systems that inform us about important electoral dynamics. We argue, on the basis of our results, that rather than stretching the concept of nationalization, it is preferable and justified to treat the concepts of nationalization of the party offer and homogenization of voter response as analytically distinct and not as two sides of the same coin.


Luana Russo
Luana Russo, Maastricht University.

Kris Deschouwer
Kris Deschouwer, Vrije Universiteit Brussel.

Tom Verthé
Tom Verthé, Ghent University & Vrije Universiteit Brussel.
Article

Fiscal Consolidation in Federal Belgium

Collective Action Problem and Solutions

Journal Politics of the Low Countries, Issue 2 2019
Keywords fiscal consolidation, fiscal policy, federalism, intergovernmental relations, High Council of Finance
Authors Johanna Schnabel
AbstractAuthor's information

    Fiscal consolidation confronts federal states with a collective action problem, especially in federations with a tightly coupled fiscal regime such as Belgium. However, the Belgian federation has successfully solved this collective action problem even though it lacks the political institutions that the literature on dynamic federalism has identified as the main mechanisms through which federal states achieve cooperation across levels of government. This article argues that the regionalization of the party system, on the one hand, and the rationalization of the deficit problem by the High Council of Finance, on the other, are crucial to understand how Belgium was able to solve the collective action problem despite its tightly coupled fiscal regime and particularly high levels of deficits and debts. The article thus emphasizes the importance of compromise and consensus in reducing deficits and debts in federal states.


Johanna Schnabel
School of Politics and International Relations, University of Kent, Rutherford College, Canterbury CT2 7NX, United Kingdom.
Article

Limited Constitutional Amendment Powers in Austria?

Journal European Journal of Law Reform, Issue 3 2019
Keywords total revision, amendment, constitutional principles
Authors Manfred Stelzer
AbstractAuthor's information

    In Austria, constitutional amendments can be attained rather easily. A two-thirds majority in parliament allows for engineering constitutional amendments. The Austrian constitution only knows one exception to its flexibility: the principles of the constitution (‘Verfassungsprinzipien’). When the constitutional principles were to be affected by formal amendment in terms of a ‘total revision’ (‘Gesamtänderung’), a higher threshold needs to be met in order to engineer an amendment. In addition to a two-thirds majority in parliament, a referendum is required. Two questions are of particular interest: First, when does a constitutional amendment amount to a total revision and what are its limits? Second, and even more important, which core principles are recognized by the Austrian constitution and what is their content? These questions may be briefly outlined.


Manfred Stelzer
Manfred Stelzer is Professor of Public Law at the University of Vienna.
Article

Access_open Constitutional Norms for All Time?

General Entrenchment Clauses in the History of European Constitutionalism

Journal European Journal of Law Reform, Issue 3 2019
Keywords constitutional amendments, constitutional law, constitutional politics, constitutionalism, entrenchment clauses, eternity clauses
Authors Michael Hein
AbstractAuthor's information

    ‘General entrenchment clauses’ are constitutional provisions that make amendments to certain parts of a constitution either more difficult to achieve than ‘normal’ amendments or even impossible, i.e., legally inadmissible. This article examines the origins of these clauses during the American Revolution (1776-77), their migration to the ‘Old World’, and their dissemination and differentiation on the European continent from 1776 until the end of 2015. In particular, the article answers three questions: (1) When, and in which contexts, did general constitutional entrenchment clauses emerge? (2) How have they migrated to and disseminated in Europe? (3) Which constitutional subjects do such clauses protect, and thus, which main functions do they aim to fulfil?


Michael Hein
Adult Education Center Altenburger Land, Altenburg, Germany. Email: mail@michaelhein.de. All cited websites were visited on June 18, 2018. Unless stated otherwise, all references to constitutions in this article are taken from M. Hein, The Constitutional Entrenchment Clauses Dataset, Göttingen 2018, http://data.michaelhein.de. All translations are by the author.
Literature review

Consensualism, Democratic Satisfaction, Political Trust and the Winner-Loser Gap

State of the Art of Two Decades of Research

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensualism, majoritarianism, political trust, satisfaction with democracy, Lijphart
Authors Tom van der Meer and Anna Kern
AbstractAuthor's information

    Lijphart (1999) argued that citizens tend to be more satisfied with democracy in consensual democracies than in majoritarian democracies and that the gap in democratic satisfaction between the winners and the losers of elections is smaller under consensualism. Twenty years on since then, this article takes stock of the literature on consensualism and political support. We find considerable ambiguity in the theoretical arguments and empirical evidence provided in this literature. Finally, we speculate on possible reasons for this ambiguity.


Tom van der Meer
Tom van der Meer, University of Amsterdam.

Anna Kern
Anna Kern, Ghent University.
Article

Access_open Do Characteristics of Consociational Democracies Still Apply to Belgian Parties?

Journal Politics of the Low Countries, Issue 1 2019
Keywords Belgium, political parties, party membership, political participation, political representation
Authors Emilie Van Haute and Bram Wauters
AbstractAuthor's information

    Belgium has long been described as a typical case of a consociational or consensus democracy. This article aims at identifying whether political parties in Belgium share the internal characteristics of parties in consensus democracies: passive mass memberships, the importance of purposive and material incentives for joining, and representation of a clear subculture in the social and attitudinal profiles of their members and via overlapping memberships with related organizations. We mobilize longitudinal party membership data and party member surveys conducted in three different time periods. We show that pillar parties still exercise their role of mobilization and representation of societal segments, but these segments tend to become smaller over time. New parties offer alternative options of mobilization and representation, although not always in line with the specific institutional arrangements of consociational democracy.


Emilie Van Haute
Emilie Van Haute, Cevipol, Université libre de Bruxelles.

Bram Wauters
Bram Wauters, Research Group GASPAR, Ghent University.
Article

Post-Legislative Scrutiny as a Form of Executive Oversight

Tools and Practices in Europe

Journal European Journal of Law Reform, Issue 2 2019
Keywords scrutiny of law enforcement, ex-post impact assessment, parliamentary oversight of the executive, post-legislative scrutiny
Authors Elena Griglio
AbstractAuthor's information

    Parliaments’ engagement in post-legislative scrutiny can be considered either as an extension of the legislative function or within the framework of the oversight of the executive. This article makes use of the latter view to assess how parliaments in Europe approach post-legislative scrutiny and to which extent this function can be regarded as a form of executive oversight. Although rules and practices of parliaments in this realm are remarkably heterogeneous, the focus on some selected parliaments (Italy, France, Germany, Sweden, and the European Parliament) reveals three different conceptual categories. In the ‘basic’ approach (passive scrutinizers), parliaments limit their role solely to the assessment of the ex-post scrutiny performed by the government and external agencies. Differently, parliaments willing to engage in a more proactive approach might choose either to act on an informal basis, establishing ad hoc research/evaluation administrative units (informal scrutinizers) or to address post-legislative scrutiny in a formal and highly institutionalized manner (formal scrutinizers). As a matter of fact, the practise of parliaments often combines characters of different categories. While in all of these approaches post-legislative scrutiny shows potential for executive oversight, only the third can potentially lead to a kind of ‘hard’ oversight.


Elena Griglio
Dr Elena Griglio is a Senior Parliamentary Official, Italian Senate and Adjunct Professor, Luiss Guido Carli University.
Article

Access_open Sustainable Enjoyment of Economic and Social Rights in Times of Crisis

Obstacles to Overcome and Bridges to Cross

Journal European Journal of Law Reform, Issue 4 2018
Keywords social and economic rights, austerity measures, Euro crisis, defaulting countries
Authors Dr. Natalie Alkiviadou
AbstractAuthor's information

    In 2008, the European Union was hit by the most severe financial downturn since the Great Recession of the 1930s. One of the major consequences of this phenomenon was the deterioration in the enjoyment of human rights, in particular economic and social rights. While it is indisputable that the crisis itself was directly correlated to the erosion of such rights, the conditions attached to the loan agreements between defaulting countries and the three lending institutions, namely the International Monetary Fund (IMF), the European Central Bank and the European Commission, have negatively affected the rights under consideration. Loans came with strict austerity measures, such as public expenditure cuts in the realm of, inter alia, public services, benefits and social security. This article considers the deterioration in the enjoyment of economic and social rights by Union inhabitants and particularly the anti-crisis strategy adopted by the European Union, which, as will be demonstrated, directly contributed to this deterioration. The stance of the three institutions was facilitated by the less than proactive, but improving, positioning of the Court of Justice of the European Union in case law, which will be assessed. It must be noted that it is not the three institutions acting alone in this process; the Member States are the ones who agree to the loans and their conditions and implement austerity measures on the ground. However, as will be reflected, the practical role and actual input of the countries themselves in this procedure is limited. The central theoretical tenet of the article is that the European Union is re-shifting its direction to the almost absolute adoption of an economic constitution, with little regard to its social counterpart. Within the aforementioned framework, this article seeks to assess the status of economic and social rights in a crisis-hit Union, provide a theoretical explanation for this occurrence and put forth possibilities for positive change, placing the protection and promotion of economic and social rights at the heart of any responses to crisis as a method to ensure their sustainable protection effectively.


Dr. Natalie Alkiviadou
Dr Natalie Alkiviadou is a Lecturer at the University of Central Lancashire Cyprus.
Article

The Margin of Appreciation in the ECtHR’s Case Law

A European Version of the Levels of Scrutiny Doctrine?

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords ECHR, judicial deference, levels of scrutiny, margin of appreciation, U.S. federalism
Authors Koen Lemmens
AbstractAuthor's information

    Although the American doctrine of levels of scrutiny and the European concept of margin of appreciation are regularly compared as typical instances of deferential judicial decision-making, this article argues that owing to the institutional setting in which they operate, the differences between the two are notable. It is also argued that the social consequences of the application of the two concepts may even be radically opposed.


Koen Lemmens
Associate professor of Public Law at KU Leuven (Belgium) and press law VU Brussels (Belgium). The author thanks Toon Agten for his comments and Camille Van Peteghem for her assistance during research. The usual disclaimer applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Three Tiers, Exceedingly Persuasive Justifications and Undue Burdens

Searching for the Golden Mean in US Constitutional Law

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Equal protection, franchise, fundamental rights, intermediate scrutiny, rationality review, reproductive rights, right to vote, strict scrutiny, substantive due process, undue burden, US constitutional law
Authors Barry Sullivan
AbstractAuthor's information

    When government action is challenged on equal protection grounds in the US, conventional wisdom holds that the courts will analyse constitutionality under one of three standards of review: rational basis, intermediate scrutiny and strict scrutiny. In substantive due process cases, two standards are applied: rational basis and strict scrutiny. In fact, careful study shows that the levels of scrutiny are actually more plastic than conventional wisdom would suggest and have shifted over time. In addition, courts sometimes confuse matters by appearing to introduce new tests, as when Justice Ginsburg characterized the government’s burden in Virginia v. United States, 518 U.S. 515 (1996) in terms of “an exceedingly persuasive justification”. Finally, while the Court originally applied strict scrutiny review to reproductive rights in Roe v. Wade, 410 U.S. 113 (1973), the Court has subsequently applied an ‘undue burden’ test in that area. A similar trend can be seen in voting rights cases. While the Court long ago characterized the right to vote as “fundamental … because preservative of all rights”, Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and the modern Court initially applied strict scrutiny to voting rights, the Court has now moved away from strict scrutiny, just as it has in the reproductive rights area. This erosion of constitutional protection for voting rights is the central concern of this article. The focus here is on the way these tests have evolved with respect to limitations on the right to vote. The article begins with a description of the three-tiered paradigm and then considers the US Supreme Court’s development of the ‘undue burden’ test as a substitute for the strict scrutiny standard in the reproductive rights jurisprudence. The article then considers the Court’s analogous move away from strict scrutiny in voting rights cases. That move is particularly troubling because overly deferential review may subvert democratic government by giving elected officials enormous power to frame electoral rules in a way that potentially games the system for their own benefit. Building on existing scholarship with respect to reproductive rights, this article suggests a possible way forward, one that may satisfy the Court’s concerns with the need for regulation of the electoral process while also providing the more robust protection needed to protect the right to participate meaningfully in the electoral process.


Barry Sullivan
Cooney & Conway Chair in Advocacy and Professor of Law, Loyola University Chicago School of Law. The author is grateful to Jeffrey W. Gordon, Pilar Mendez and Tara Russo for expert research assistance, to Julienne Grant, Loyola University Chicago School of Law Reference Librarian, for additional research assistance, and to Michael Kaufman, Alfred S. Konefsky, Juan Perea, H. Jefferson Powell, Henry Rose, and Winnifred Fallers Sullivan for many helpful comments on an earlier draft. The author also wishes to thank the Cooney & Conway Chair Fund and the Loyola University School of Law Faculty Research Fund. The usual dispensation applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Perspectives on Comparative Federalism

The American Experience in the Pre-incorporation Era

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords 14th amendment, anti-federalists, Barron v. Baltimore (1833), Board of Education and other Cases (1954), Civil Rights Cases (1883), Bill of Rights, Brown v. Constitutional Convention (1787), Federalists, Holmes v. Jennsion (1840), Plessy v. Ferguson (1896), The Federalist (1787-1788)
Authors Kenneth R. Stevens
AbstractAuthor's information

    Today the Bill of Rights is understood to limit not only the federal government but also the power of the states to infringe on the civil liberties of citizens. This was not always the case. In the early days of the republic, most Americans feared federal authority far more than the states. This remained the case until passage of the 14th amendment to the Constitution followed by a series of interpretations over the years by the Supreme Court that broadened its scope. Some delegates at the convention of 1787 and other critics during ratification complained that the Constitution did not include a bill of rights, but others objected that the people needed such protections from government power. It became clear, however, that ratification could not be attained without inclusion of a Bill of Rights, which were adopted as amendments in 1791. In 1833, the Supreme Court ruled, in Barron v. Baltimore, that the provisions of the Bill of Rights imposed restrictions only on the federal government and not on the states. Passage of the 14th amendment in 1868 made the Bill of Rights restrictions on the states. Over the years, federal courts increasingly broadened the authority of the Bill of Rights as limitations on the states.


Kenneth R. Stevens
Professor, AddRan College of Liberal Arts, Texas Christian University. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Federalization through Rights in the EU

A Legal Opportunities Approach

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords EU Charter of Fundamental Rights, Federalization, Integration, Legal change, Legal opportunities, Litigation, Scope of application
Authors Marie-Pierre Granger
AbstractAuthor's information

    While academic contributions abound on the reach and impact of the European Union (EU) system of fundamental rights protection, and notably on the desirability of a more or less extensive control of Member States’ actions in light of the rights protected by the EU Charter of Fundamental Rights, there have been few attempts to explain the dynamics of integration-through-rights in the EU. This article proposes an explanatory framework inspired by a legal opportunities approach, which emphasizes the relevance of national and EU legal opportunities, and interactions between them, in determining the actual scope and pace of federalization through rights in the EU. It suggests that the weaker the legal opportunities for fundamental rights protection are at the domestic level, the greater the federalizing pressure is, and call for more empirical comparative studies to test this framework out.


Marie-Pierre Granger
Associate Professor, Central European University, Budapest. The development of the conceptual framework proposed in this article was inspired by empirical studies on France and Hungary carried out within the EU-funded project ‘bEUcitizen: barriers towards EU Citizenship’ under the FP7 programme (Grant agreement 320294). This volume (The EU Bill of Rights' Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets `Momentum' Research Group.
Article

The Architecture of American Rights Protections

Texts, Concepts and Institutions

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords American constitutional development, American legal history, Architecture, Bill of Rights, Congress, constitutional interpretation, constitutionalism, discrimination, due process, equal protection, equality, institutions, statutes, U.S. Constitution, 14th Amendment
Authors Howard Schweber
AbstractAuthor's information

    This article examines the architecture of American rights protections. The term ‘architecture’ is used to convey the sense of a structure system with points of entry, channels of proceeding, and different end points. This structural understanding is applied to the historical development of national rights protections in the United States in three senses: textual, conceptual and institutional. The development of these three structured systems – architectures – of rights reveals dimensions of the strengths, limitations and distinctive character of the American rights protections in theory and in practice.


Howard Schweber
Professor of Political Science and affiliate faculty member of the Law School, Legal Studies, and Integrated Liberal Studies at University of Wisconsin-Madison. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Rights in the Australian Federation

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Australian Constitution, bill of rights, constitutional rights, democracy, federalism, freedom of interstate trade, freedom of religion, implied rights, judicial independence, property rights, right to trial by jury, separation of powers
Authors Nicholas Aroney and James Stellios
AbstractAuthor's information

    The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched bill of rights. Yet Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.


Nicholas Aroney
Nicholas Aroney is Professor of Constitutional Law, The University of Queensland. The support of Australian Research Council grant FT100100469 is gratefully acknowledged. Thanks are also due to Terry East for his very capable research assistance. James Stellios is Professor, Law School, Australian National University. Part of this article benefited from the Australian Research Council’s Discovery Projects funding scheme: DP140101218. Part of this article benefited from the Australian Research Council’s Discovery Projects funding scheme: DP140101218. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.

James Stellios
Editorial

The EU Bill of Rights’ Diagonal Application to Member States

Comparative Perspectives of Europe’s Human Rights Deficit

Journal European Journal of Law Reform, Issue 2-3 2018
Authors Csongor István Nagy
Author's information

Csongor István Nagy
Professor of law and head of the Department of Private International Law at the University of Szeged, research chair and the head of the Federal Markets ‘Momentum’ Research Group of the Hungarian Academy of Sciences and an attorney-at-law admitted to the Budapest Bar. He serves as a recurrent visiting Professor at the Central European University (Budapest/New York), the Riga Graduate School of Law (Latvia) and the Sapientia University of Transylvania (Romania). This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Trinity Lutheran and Its Implications for Federalism in the United States

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords anti-Catholic bias, Baby Blaine Amendments, Blaine Amendments, federalism, free exercise, non-discrimination, religious animus
Authors Brett G. Scharffs
AbstractAuthor's information

    This article considers the ‘tire scrap’ playground case, Trinity Lutheran Church of Columbia, Inc. v. Comer, decided by the U.S. Supreme Court in the summer of 2017, and its implications for federalism in the United States. In Trinity Lutheran the U.S. Supreme Court held that the state of Missouri violated the Free Exercise Clause of the First Amendment by disqualifying a church-owned school from participating in a programme that provided state funding for updating playgrounds. The case has interesting Free Exercise Clause implications, because the Court emphasized the non-discrimination component of Free Exercise. It also has interesting implications for federalism, because Missouri’s State constitutional provision prohibiting state funding of religion was rooted in an era of anti-Catholic bias. These so-called State constitutional ‘Blaine Amendments’ exist in some form in as many as forty states. Although the Court did not explicitly address whether state Blaine Amendments violate the U.S. Constitution per se due to their history of religious animus, the Court held that this Blaine Amendment as applied here violated the Federal Constitution. This could have significant effects for the wall of separation between religion and the state, and might have especially significant implications for state funding of religion, including the ‘elephant in the room’ in this case, state educational ‘voucher’ programmes that provide state funding to parents who send their children to religiously affiliated schools.


Brett G. Scharffs
Director, International Center for Law and Religion Studies and Rex E. Lee Chair and Professor of Law, J. Reuben Clark Law School, Brigham Young University. BSBA, MA, Georgetown University; BPhil (Rhodes Scholar) Oxford University; JD, Yale Law School. Thanks to Kyle Harvey, BYU Law Class of 2019 for his research assistance. Heartfelt thanks also to Professor Csongor István Nagy for the invitation to contribute to this project. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Sovereign Strikes Back

A Judicial Perspective on Multi-Layered Constitutionalism in Europe

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Constitutional identity, constitutionalism, fragmentation, globalization, multilayered constitution, sovereignty, trust
Authors Renáta Uitz and András Sajó
AbstractAuthor's information

    The supranational web of public law is often described as a new constitutionalism. It emerged in a globalized world together with global markets. In the course of the multilayered constitutional experiment, the old, national constitutional framework had lost its ability to deliver on the key features associated with constitutionalism: limiting the exercise of political powers and preventing the arbitrary exercise thereof. In the multilayered era it has become difficult to pinpoint the centre of authority. Ultimately, someone needs to govern, if not for other reasons, at least to avoid chaos. Is it possible to have the guarantees of freedom, rule of law and efficiency that a constitutional democracy seems to provide in a system where there is no sovereign with authority?


Renáta Uitz
Renáta Uitz is Professor, Chair of the Comparative Constitutional Law Program, Department of Legal Studies, Central European University, Budapest.

András Sajó
András Sajo is University Professor, Central European University, Budapest. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Incorporation Doctrine’s Federalism Costs

A Cautionary Note for the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Bill of Rights, Charter of Fundamental Rights, diversity of human flourishing, federalism, incorporation, individual liberty, jurisdictional competition
Authors Lee J. Strang
AbstractAuthor's information

    In this article, I first briefly describe the U.S. Supreme Court’s decades-long process of incorporating the federal Bill of Rights against the states. Second, I argue that incorporation of the Bill of Rights has come with significant costs to federalism in the United States. Third, I suggest that the American experience provides a cautionary note for the European Union as it grapples with the question of whether and to what extent to apply the Charter of Fundamental Rights to its constituent nations. I end by identifying options available to the European Union to avoid at least some of this harm to federalism while, at the same time, securing some of the benefit that might be occasioned by incorporating the Charter.


Lee J. Strang
John W. Stoepler Professor of Law and Values, University of Toledo College of Law. Thank you to Csongor Istvan Nagy for organizing and hosting this conference, and to the conference participants for their thoughtful comments and criticisms. Thank you as well to Michael Stahl for his valuable research assistance. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.

Jonathan Teasdale
Jonathan Teasdale is an associate research fellow at the Institute of Advanced Legal Studies (University of London) in the Sir William Dale Centre for Legislative Studies, and co-leader (with Dr Enrico Albanesi) of the IALS Law Reform Project. He is a barrister (now non-practising) and former lawyer with the Law Commission for England and Wales, and one time was a local authority chief executive.
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