lunedì 2 maggio 2016

Pluralising Constitutional Pluralism

Cormac S. Mac Amhlaigh 
University of Edinburgh - School of Law

April 8, 2016

N. Roughan and A. Halpin (eds) In Pursuit of Pluralist Jurisprudence (Cambridge University Press, Forthcoming) 
Edinburgh School of Law Research Paper No. 2016/10 

This chapter addresses a relatively neglected area of the burgeoning literature on constitutional pluralism; its ‘methodological monism’. Virtually all accounts of constitutional pluralism assume that one model or framework of constitutional pluralism can account for and/or legitimise interacting and conflicting legal orders in a global context. Yet, the chapter argues, this methodological monism is incompatible with constitutional pluralism’s reliance on the statements of legal officials, both state and supra state, in the development of models of constitutional pluralism. Within a ‘global disorder’ of legal orders lies a ‘global disorder’ of legal officials and a concomitant ‘global disorder’ of suprastate claims of legal authority and effectiveness which impacts upon how legal orders interact and conflict. In this light of this, constitutional pluralism, particularly in its explanatory guise, cannot hope to capture the state of the global disorder of interacting legal orders if it insists upon one model to explain them all. Contrasting the claims of the Courts of the European Union and European Convention of Human Rights, the chapter shows how different models of constitutional pluralism are necessary to explain different interactions and conflicts between legal orders. It concludes, therefore, that constitutional pluralism itself needs to be pluralised.

Keywords: Constitutional pluralism; post national law; transnational legal theory; EU law; ECHR law
Antonin Scalia, Living Constitutionalist

Cass R. Sunstein 
Harvard Law School

April 6, 2016

Harvard Law Review, Forthcoming 
Harvard Public Law Working Paper No. 16-15 

Justice Antonin Scalia was a vigorous defender of originalism, but in some of his most important opinions, he was a superb practitioner of living constitutionalism. Two of the best examples are his majority opinions in Lujan v. Defenders of Wildlife (involving standing) and Lucas v. South Carolina Coastal Council (involving “takings”). His affirmative action opinions fall in the same category, and District of Columbia v. Heller, though written in originalist terms, can easily be seen as a moral reading of the Second Amendment. One lesson involves the gravitational pull of precedents, which can draw judges away from their preferred methodologies. The larger lesson is that moral readings of the Constitution are exceptionally difficult to avoid in specific cases, even for judges who abhor them in general.