ADRO 22A10 - Contemporary Constitutional Law

This class highlights the unprecedented challenges facing comparative constitutional law in its fundamental aim of creating legitimate and effective contemporary political regimes and systems. As a starting point, we will examine the difficulty of contemporary constitutions to embody a normative authority as the « highest law of the land » despite apparent conflicts of sovereignty in a globalized world. Building on the analysis of the birth and evolution of political institutions, covered in the first-year course, this second-year course will examine the underlying tensions within actual constitutional regulation, by exploring the concepts of constitutional identity, constitutional legitimacy, and constitutional efficiency in modern constitutional practice around the globe. We will question the pertinence of constitutionalism in this context, which is particularly important for students wishing to engage in effective careers of politics and government in an era of ever-increasing contestation of State-centered regulation.

The first four lectures question the strengths and weaknesses of constitutional mechanisms which claim to implement or represent the identity of a nation or a people, both geographically at different levels of local power within the State (vertical separation of powers) and institutionally (horizontal separation of powers). This part of the course will address contemporary constitutional issues raised within evolving longstanding democracies (notably the complexity of the link between identity and sovereignty) and those flowing from fourth wave democracies following the Arab Spring, as well as the evolution of constitutionalism in Latin America, in Africa, and in Asia. Special attention will be given to the notion of constitutionally regulated secularism in an increasingly non-secular world.

The second part of the course (lectures 5-8) confronts the ambiguity of long-term legitimacy of contemporary constitutions by analyzing their political and legal capacity to adapt to new forms of citizen participation and representation (electoral procedures, “elected monarchs”, representative government, evolution of political parties, legislative process and scope, constitutional amendment, gender, minorities, lobbies, environmental issues...), and to both weak and strong forms of judicial review. In so doing we will consider how jurists across different systems (namely the United Kingdom, France, Ireland, Russia, United States, Germany, Korea, India) use different methods of interpretation (textual, teleological, historical, proportional…) to implement similar regulations (review and possible sanction of governmental action, guarantee and limitation of explicit and implicit rights).

The final four sessions (lectures 9-12) will then challenge the ambiguous concept of the efficiency of modern constitutions, confronted with the expanding role of international law and supranational judicial bodies, notably regarding the adjudication and governmental regulation of third and fourth generation human rights. Indeed, current challenges to the efficiency of constitutional principles by regional law (European Union, Council of Europe) and international law, as well as expanding affirmations of environmental and digital constitutionalism, exacerbate the inherent incoherences of ensuring the guarantee of fundamental rights in an age of information technology, and global terrorism.

Depending on availability, a QPC hearing before the French Constitutional Council in Paris will enable students to observe an interpretive method in practice, and the preparation and class interaction on topics concerning the annual Political Institutions conference will illustrate the influence of comparative constitutional law on modern constitutional design.

We highly suggest that students that did not validate the level 1 class in English prepare for this level 2 class during the summer, by revising the quiz questions at the end of each seminar outline of the level 1 class in English. Students registering for the level 2 class (politics and government major) are automatically added to the GOOGLE DRIVE of the level 1 class. All of the answers to the questions are clearly indicated in class slides, and you may also request answer sheets from your colleagues that took the class last year.

The course will be divided into 12 two-hour lectures and 12 two-hour seminars. Power points and course outline will be available on GOOGLE DRIVE prior to each lecture. Power points, readings, and seminar documents should be studied before each lecture, allowing students to assimilate the lectures with a CRITICAL analysis.

Weekly seminars will follow the lectures and include both practical (case studies and commentaries) and theoretical (essays and debates) exercises. The workload has been designed to allow students to master the key questions and key terms on the seminar syllabus, as well as thoroughly comprehending each of the seminar documents. REQUIRED READINGS FOR THE LECTURES AND SEMINARS ARE ALL ON GOOGLE DRIVE, and we highly encourage students to read them each week, not only the week in which they are assigned a given exercise.

This class builds on the level one class on Political Institutions and Comparative Constitutional Law. You must therefore review any points not clearly understood last year before the class. If you are given a text to comment, that was already covered in the level one class, you will therefore be expected to add the concepts and cases learned in the second level class when constructing your argumentation. The texts to comment in seminars are aimed at preparing you for the length of a text you might comment in the final exam. In each essay, you must make sure to demonstrate that you have mastered both material from the level one and the level two class.

At the end of the course, the student is expected in his/her final examination to:

• Be able to present a critical analysis of current doctrinal developments and jurisprudence regarding the conception, implementation, and efficiency of contemporary constitutional provisions.
• Be able to build on said analysis to propose precise measures of constitutional design for both longstanding and new political regimes.
• Have mastered argumentative techniques as implemented in essay form (dissertation) and in text commentary, and in so doing referring to class lectures, readings, and seminar texts.

1/ 2/3 OF THE FINAL GRADE is comprised of THREE EQUAL MARKS OBTAINED IN SEMINARS:

1.1. ONE 12 MINUTE INDIVIDUAL ORAL PRESENTATION OF A WRITTEN ESSAY OR TEXT COMMENTARY, followed by 15-20 minutes of questions by the seminar instructor = 1/3 of the seminar grade

o See rules and instructions for the 2000-word essay or case or text commentary and presentation hereafter page 6. Dates for the presentation will be assigned during the welcome week, but topics will be given by seminar instructor one week prior to the presentation, so as to maintain equality among all students.

o Your written essay must be sent by email to your seminar instructor the day before the seminar at 7:00 p.m. at the latest.

o You must also prepare a power point presentation as a support to the oral presentation of your essay. Your power points do not need to be detailed but must include the major arguments proving each part and subpart of your essay. You are graded on your capacity to present your ideas clearly and convincingly in the given 12-minute delay (see evaluation grid hereafter p. 10). This exercise is aimed at preparing the METHOD necessary for your final exam, which will be a written essay or text commentary.

o After the presentation, seminar instructor will ask the presenter questions raised during his/her presentation, or concerning the formal structure or bibliography, and propose a correction (critical issue, thesis, outline). The instructor may also invite other students to add comments or ask questions.

1.2. THE MEAN GRADE OF DEBATE PARTICIPATION IN EACH SEMINAR = 1/3 of the seminar grade

o Each seminar outline is based on a critical issue (indicated on the seminar outline). Both this critical issue and other debate questions indicated on the outline, are intrinsically linked to the lecture, to the required readings, and to seminar documents. All of the questions will help you in preparing your final exam.

o Students must prepare the lecture notes and slides, the readings and documents and be ready to use them in a debate which will be moderated by the seminar instructor in a manner so as to invite each student to bring a critical approach to the debate. NB:the following is simply an OPTION, which means that any of the debate questions on the seminar outline may also be asked to any individual student randomly each week, so be prepared to answer as you will not be able to hide behind other members of the team.

o ONE OPTION FOR DEBATE MIGHT BE THE FOLLOWING:

o Each seminar group will be divided into two groups and whenever called upon will work together as a team.

o Every week the seminar instructor may invite the two groups to announce a “speaker” for the day (which must change every week, so no individual will ever be a speaker twice during the semester).

o The first group will pick a topic by lot, and when the seminar instructor starts the « timer », the speaker has 30 seconds to consult with his/her team to pick a position “for” or “against” the question. They then notify the other team of their choice. The other team must therefore adopt the opposite opinion on the question, with arguments found in class materials, readings or seminar documents.

o Both teams then have 10 minutes to assign arguments among members of the group.

o The team having chosen the first position “for” or “against” presents its arguments first, for 10 minutes, followed by 10 minutes of rebuttal by the opposing team. This exercise aims to heighten your capacity to organize your ideas quickly as a group, and find a balanced manner to present your arguments, without any one individual dominating the discussion.

o The seminar instructor will then ask questions of both teams regarding their positions and may ask individual questions to any student regarding the required readings, or the seminar documents.

o The seminar instructor will then close the debate, noting the essential elements and conclusions to the critical issue and propose a correction (critical issue, thesis, outline) for each question.

1.3 ONE MIDTERM EXAMINATION = 1/3 OF THE SEMINAR GRADE

o Written essay or case or text commentary; same format as for the weekly individual papers (3 hours, open book)

2/ 1/3 OF THE FINAL GRADE = FINAL EXAMINATION (ESSAY OR TEXT OR CASE COMMENTARY, 3 hours, open book)