COMPARATIVE CONSTITUTIONAL NEGOTIATION:

TOWARDS A THEORY OF SUSTAINED JUDICIAL REVIEW

BY

MICHAEL K. HANLEY

A senior thesis
submitted to the Department of Politics
in partial fulfillment of the requirements for
the degree of Bachelor of Arts

Princeton University
Princeton, New Jersey

3 APRIL 2013
 Table of Contents
Preface……………………………………….……………………………………….…………………… iii.
Bibliography……………………………………………………………….………….………………..... 125
Honor Code Pledge………………………….…………………………….…………....................…….. 137

Chapter 1: TOWARDS A THEORY OF SUSTAINED JUDICIAL REVIEW...………..…..….......... 1

The Middle Ground between Activism and Restraint…………...………….……...……. 8
Constitutional Negotiation Defined………….……..........…………................…..…..... 15

Chapter 2: CASE STUDIES FOR COMPARATIVE ANALYSIS........................................................ 23

Comparative Cases and Political Issues......………….……...….…………….……...…. 24
Civil Law vs. Common Law Considerations…..……....……………………..………… 27

Chapter 3: NEGOTIATION PRACTICES IN COMMON LAW SYSTEMS….......................…….. 33

Dialogue in Theory and Practice – The Canadian Experience.......…………...….......... 36
The “New Deference” of the US Supreme Court……………...……………....……….. 49
Abstracting from Common Law Negotiation…………………….......................……… 61

Chapter 4: THIRD PARTY NEGOTIATION: LA CORTE COSTITUZIONALE……..………......... 64

Italian Jurisprudence on Berlusconi’s Immunity…………….…...………….…………. 67
The Structural Gap in Italian Law……………………….………….…..…..……..…… 77
A New Hope – Enter Third Party Negotiation……………………...…….……………. 84
The Italian Experience Compared………………………..………………..….………... 87

Chapter 5: SPLIT AUDIENCE NEGOTIATION: DAS BUNDESVERFASSUNGSGERICHT........ 90

German Jurisprudence on EU Integration………….…….……….………….…...……. 92
Evaluating the Court’s Position in ESM I……………..….………………….….……...112
Characterizing German Negotiation in Comparative Context……......………….…..... 115

Chapter 6: CONSTITUITONAL NEGOTIATION AND JUDICIAL REVIEW……….…………. 118

Evaluating Constitutional Negotiation…………………...…..……............................... 120
Questions for Further Research………….…….……….......……………….……….... 122

Appendix – THE MODEL OF CONSTITUTIONAL NEGOTIATION…...……………………....... 124

ii.
 Preface

In developing a comparative theory for judicial review, I seek to accomplish much in just

over one hundred pages. The first chapter introduces the topic in a theoretical sense, orienting

judicial review as a spectrum of possibilities and noting that much of the academic discussion has

focused on either extreme. I argue that the discussion must move towards a middle ground, and

conceive several ways that the judiciary may be seen as working with other political actors in

order to arrive at a more clear elaboration of constitutional provisions. Framing this task in terms

of Ronald Dworkin’s “right answer thesis” helps ground the discussion in a pointed question – is

there a way to conceive the varying capacities of institutions as somehow complementing one

another over time in order to arrive at an increasingly developed understanding of a constitutional

law? The answer, I suggest, is constitutional negotiation, a process in which political actors – in

exerting their varying capacities to apply, interpret, and implement constitutional provisions –

gradually develop a moderate position on the ideological and qualified content of such provisions

over time. I argue that such negotiation occurs even in cases where all of the political actors

disagree over the content of such constitutional laws.

Having developed a theoretical formulation of this conception of judicial review, the

remainder of the thesis seeks to find and outline this process in the development of very important

issues within four constitutional democracies, outlined in the second chapter and explored in

detail in the third, fourth, and fifth chapters. The common law case studies, the topic of the third

chapter, examine secondary sources that have already developed different theories for sustained

judicial review. In examining these theories, I contend that both are reducible to the process of

constitutional negotiation.

Meanwhile, the civil law case studies – focusing on Italy and Germany – have not seen a

comparative examination of sustained judicial review, likely due to the many differences between

iii.
civil law and common law systems, as well as the “foreignness” of these systems to most

American scholars. Nevertheless, I contend that constitutional negotiation still takes place in

these systems, particularly on controversial issues of constitutional import, and the jurisprudences

of these two countries constitute the topics of the fourth and fifth chapters. In the same manner

that had been previously been done in the common law cases, I walk through a series of case

progressions and legislative responses for each country, noting how the constitutional provisions

in question have been further elaborated over time, as a result of negotiation between political

actors.

In a sense, the greatly diverse yet related topics touched upon by this thesis represent an

intersection of all of my areas of academic interests, and I have many people to thank for

providing the opportunities, resources, and guidance as I sought to expand my knowledge of these

topics both in the US and abroad.

First, I would like to thank the German and French & Italian Departments of Princeton

University for providing me with the language knowledge to make much of this research

possible. Having a research proficiency in German and Italian definitely was a requirement in

giving both of the civil law case studies a proper examination.

Secondly, I would like to thank the Program in Translation and Intercultural

Communication, whose courses enabled me to have an informed approach to translating the cases

of both Constitutional Courts, some of which appear in this thesis. The department also provided

me with knowledge of the issues that come into play when considering similar topics across

different legal systems, a factor that largely motivated the section that delves into some of the

salient differences between civil law and common law judiciaries, as well as some of institutional

structures that make the Italian legal system unique. Further, the department also provided some

of the funding needed to conduct summer research abroad, for which I am grateful.

iv.
 Related to this previous point, I would also like to thank the Woodrow Wilson School

and the Office of the Dean of Undergraduate Students for their generosity in funding my summer

thesis research, which was required to grasp a more complete knowledge of the legal systems of

Italy and Germany, and to present the civil law case studies in an accurate and informed manner.

Related to the summer research project, I would like to thank Matteo Marra, the law

student with whom I stayed for a month in Bologna, Italy, who introduced me to the curriculum

and resources available at L’Università di Bologna Facoltà di Giurisprudenza. Further, I would

like to thank the Center for Constitutional Studies and Democratic Development – an

organization founded by L’Università di Bologna – for introducing me to the constitutional and

legal issues that former Prime Minister Silvio Berlusconi had faced throughout his regime. Such

guidance definitely helped in the development of the Italian case study, which focuses on

negotiations over parliamentary immunity.

On the German side of the research project, I would like to thank the Hochschule Bremen

for offering a summer course on German Law, which directly helped me to get a more detailed

perspective jurisprudence of the German Court, as well as a German perspective on the EU

integration process. Particularly, I would like to thank Herr Mönch, the professor of the section

on German Constitutional Law, which specifically addressed some of the issues covered in the

case study. I would also like to thank Frau Anja Rose for graciously allowing me to stay with her

family while I took the course this past August.

I would also like to thank the Program in Law and Public Affairs, which provided me

with many avenues to exchange ideas with some of the most researched scholars in related fields.

Specifically, I would like to thank former Justice Dieter Grimm of the Federal Constitutional

Court for taking the time to discuss both the inner workings of the German Court, as well as the

complicated constitutional issues that arose out of the Court’s decision on the European Stability

Mechanism, the case around with the German case study is framed. I would also like to thank

v.
Professors Stephen Macedo, Gábor Halmai, Alan Patten, Christopher Eisgruber, Lawrence Sager,

and Charles Waldron for the discussions on the Ronald Dworkin’s “right answer theory,” a

discussion that greatly helped ground the topic of this thesis in theoretical terms.

I would also like to thank all of my friends and family that provided morale support, as

well as feedback on several ideas as I went through writing various drafts of several sections of

the thesis. Writing is never an isolated process, and it is always helpful to get an outside

perspective on ideas that sound great in theory, yet are hard to put down on paper.

Finally, I would like to thank my thesis advisor, Professor Kim Lane Scheppele. Without

her and Professor Halmai having introduced me to comparative constitutional law, I would have

no idea what would have been the topic of the following pages. Professor Scheppele was the best

advisor I could have asked for, and I thoroughly enjoyed discussing the comparative issues that

have emerged in each of these jurisprudences. I would have been completely lost without her

guidance throughout the entire process.

vi.
vii.
 Towards a Theory of Sustained Judicial Review

The justice-seeking view of our constitutional institutions depends upon the

belief that ongoing… judicial judgment – guided only broadly by the text of
the Constitution – is a reasonably good guide to the most critical requirements
of political justice. This is an impossibly complex judgment of institutional
competence, and in the end we may have only interpretations of our national
experience and the experiences of other modern states and guesses as to how
these experiences might otherwise have gone upon which to rely.

– Lawrence Sager, 2004

When the US Supreme Court decided in 1973 that a right to privacy under the due

process clause of the 14th Amendment granted American women the right to have an abortion,

critics everywhere decried the ruling as judicial activism. Indeed, in his dissenting opinion,

Justice Byron White wrote that, “[a]s an exercise of raw judicial power, the Court perhaps has

authority to do what it does today; but, in my view, its judgment is an improvident and

extravagant exercise of the power of judicial review that the Constitution extends to this Court.”1

Clearly the implication here is that the Court overstepped its competencies, a fact that, if true,

would worry many scholars that denounce judicial review as anti-democratic.

On the other hand, the same Court has in many instances been accused of not acting in a

case when it should have. For instance, in Minersville School District v. Gobitis, the Court

upheld a policy of the Minersville School District that required a compulsory salute of the flag as

part of daily school activities, denying a family of Jehovah’s Witnesses the right to an

accommodation in light of their religious beliefs.2 The opinion, written by Justice Felix

Frankfurter, largely turned on affording deference to the legislature on its discretion to determine,

as a matter of national security, the bases for promoting national unity, claiming that this interest

1
Doe v. Bolton. 410 U.S. (1973), at 222.
2
Minersville School District v. Board of Education. 310 U.S. 586 (1940), at 598.

1.
outweighs other potential infringements of liberties.3 The dissenting parties steadfastly disagreed

with this analysis. Justice Stone particularly attacked Frankfurter’s policy of deference in noting

that “legislation which operates to repress the religious freedom of small minorities, which is

admittedly within the scope of the protection of the Bill of Rights, must at least be subject to the

same judicial scrutiny as legislation which we have recently held to infringe the constitutional

liberty of religious and racial minorities.”4 Many legal scholars at the time criticized the decision

from this angle, noting that the judicial restraint in this case was unwarranted.5

Simply put, the Supreme Court has been attacked on separate occasions of being either

excessively activist or excessively restrained. Such perspectives arise from the inclination to

study the jurisprudence of courts by examining a laundry list of singular decisions issued in

“landmark” cases, a tendency that is reinforced through the pedagogical practices of law schools.

This approach to evaluating the role of the courts, however, misses the larger picture of the roles

that political branches and outside parties have in shaping the understanding of a constitutional

provision.

To illustrate this point, let us return to the two aforementioned cases. While basing an

understanding of the right to have an abortion on Roe v. Wade does enable one to understand that

abortion can never be criminalized, it completely overlooks how subsequent legislation, in

response to the Court’s ruling, has successfully drawn numerous prohibitive limitations that

render abortions less feasible, both practically and financially.6 The Court actually upheld many

3
Ibid, at 595, 597-598.
4
Ibid, at 607.
5
Sandmann, Warren. “West Virginia State Board of Education v. Barnette.” Free Speech on Trial. Ed.
Richard Parker. London: Univ. of Alabama Press, 2003, pp. 100-115. Pg. 104.
6
Scheppele, Kim Lane. “The New Judicial Deference.” Boston University Law Review. Vol. 92(1): Jan.
2012, 89-170. Pg. 157, citing: Vestal, Christine. “Abortion Rates Down, Restrictions Up.” Stateline. 18
Jan. 2008. Web. <http://www.stateline.org/live/details/story?contentId=272870>; Center for Reproductive
Rights. “Defending Human Rights: Abortion Providers Facing Threats, Restrictions and Harassment.
Center for Reproductive Rights. 2009. Web. <http://reproductiverights.org/sites/
crr.civicactions.net/files/documents/DefendingHumanRights_0.pdf>.; and Guttmacher Institute.
“Restricting Insurance Coverage of Abortion”. Guttmacher Institute. 1 Mar. 2013. Web.
<http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf>.

2.
of these limitations, despite having originally established an unfettered right to an abortion within

the first trimester in Roe v. Wade.7

Likewise, the aftermath of the Gobitis decision also saw a response from legislatures. As

Warren Sandmann notes, the case “seemed to foster an increase in compulsory flag salute

practices” among school districts within the country.8 One such realization of the Gobitis deferral

of the Supreme Court was the policy of the West Virginia Board of Education, which was enacted

completely in line with the Gobitis precedent.9 In reaching the Supreme Court, a case that arose

from a challenge to the West Virginia law, Barnette v. West Virginia State Board of Education,

provided the Supreme Court the opportunity to review the same competing interests faced in

Gobitis. Similar to the previous case, Barnette revolved around the rights of a family of

Jehovah’s Witnesses that had a religiously based objection to participating in the compulsory

salutes, resulting in the expulsion of the Barnette children from public schooling in West

Virginia.10 The ruling of the Court, in reversing the decision of the previous case, held that the

basic values enshrined in the virtue of being a citizen stem from an appreciation of intellectual

and cultural diversity – believing that “patriotism will not flourish if patriotic ceremonies are

voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of

the appeal of our institutions to free minds.”11 Such a sweeping appraisal of the First Amendment

in relation to public education has raised further discussions on the content of accommodations

made in the interest of multiculturalism, realized through cases such as Wisconsin v. Yoder.

7
For an overview of laws that have been passed on the state level and approved by SCOTUS, see: “State
Policies in Brief: An Overview of Abortion Laws.” Guttmacher Institute. 21 Mar. 2013.
<http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf>.
8
Sandmann 104. In a rather ironic manner, he cites the Paris Adult Theatre I v. Slaton case of 1973, in
which Justice Brennan, dissenting, notes: “The problem is… that one cannot say with certainty that
material is obscene until five members of this Court, applying inevitably obscure standards, have
pronounced it so.”
9
Ibid 105.
10
Ibid 105-106.
11
West Virginia Board of Education v. Barnette. 319 U.S. 624 (1943), at 641.

3.
 Thus, in considering the role of courts from the perspective of landmark cases, in which a

Court is often accused of either being too activist or too restricted, the debate over the role of

judicial review in a democracy has largely failed to place the Court’s competencies in relation to

those of the legislature. As a result, arguments over the validity of judicial review have been

concentrated on either extreme – legal scholars have either argued that judicial review serves as

the last check against majoritarian overrides of fundamental values within a legal system,12 or that

review represents an undemocratic competency of the Court that fails to protect rights in a

substantially better way than the legislative process left alone.13 Such an approach has closed the

door on the possibility of realizing a middle ground, one that recognizes the potential for the

different institutional capacities of the legislature, the judiciary, and other actors as being

indispensible to one another in narrowing in on the correct realization of a constitutional

provision over time, both in theory and practice. The realization of such a “middle ground,” both

empirically and theoretically, represents the topic of this thesis.

Theoretically, it may help to rephrase this room for a “middle ground” on judicial review,

using terms of Ronald Dworkin’s “right answer thesis” as a metaphor for the combined role of

political actors. Dworkin presents this argument in one of his more known works, Taking Rights

Seriously. Here, he describes a parable of a unitary judge who – if given unlimited access to

information about the world, law, and everything else, an unlimited capacity for processing

information, and an unlimited amount of time to process that information – will always arrive at

the correct answer to a problem.14

While this account is intentionally idealistic in nature, it does beg some questions, given

the realities of our political system. Why must the “judge” be a unitary individual with all of the

12
For a perspective on this view, see: Barak, Aharon. “The Role of a Supreme Court in a Democracy.”
Harvard Law Review. Vol 116(1): Nov. 2002, pp. 19-162.
13
This argument emerges in: Waldron, Jeremy. “The Core of the Case Against Judicial Review.” Yale Law
Journal. Vol. 115(6): Apr. 2006, pp. 1346-1406.
14
Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard Univ. Press, 1977. Pp. 105-106.

4.
required capacities, rather than various individuals with complementary capacities? How do we

reconcile the fact that our judicial system turns on reaching a decision and issuing a remedy in a

timely manner with the possibility that our “judge” may require an infinite amount of time to

arrive at an answer?15

Parsing this account in light of these questions and attributing certain parts of the theory

to various political realities, then, may motivate a reframing of this ideal account that better tracks

the nature of our political system. We first encounter one of these “ideal assumptions” in

assuming that this unitary judge has “unlimited access” and “unlimited capacity” to evaluate all

relevant aspects of an issue. Typical accounts of judicial deference repeatedly note how

asymmetric the capacities and knowledge of policy issues actually are among different

institutions.16 For example, Courts have little to no access to classified information held by the

government when deciding on cases involving national security, and nonetheless are faced with

cases in which national security emerges as a competing concern. In these cases, the solution

often becomes recognizing the legislature as a “delegated decision-maker,” and deferring to their

knowledge of the issue.17 On the flipside, the legislatures are expected to answer to the

constituencies that elected them, and thus may be subject to pressures that cannot touch the

courts.18 Thus, it would seem that the Court stands in a position to evaluate constitutional

provisions in a more objective manner.

On another side of this “institutional capacity” consideration is the fact that the different

government branches are given distinct but complementary roles in the realization of

constitutional provisions. While the Court inherently interprets whether a right exists within a

15
It must be noted that these questions do not represent objections to Dworkin’s theory. Dworkin never
particularly focused his account towards varied institutional capacities. In so far as they have the potential
to adjust the theory, these questions remain largely unanswered.
16
Jowell, Jeffrey. “Of Vires and Vacuum: The Constitutional Context of Judicial Review.” Public Law.
1999, pp. 448-460. Pp. 448, 451-453.
17
Daly, Paul. “Deference on Questions of Law.” Modern Law Review. Vol. 74(5): 2011, pp. 694-720.
Pg. 697.
18
Dworkin, Ronald. A Matter of Principle. Cambridge: Harvard Univ. Press, 1985. Pg. 25.

5.
provision, the legislature acts as the gatekeeper towards the practical recognition and proper

implementation of that provision in law. While common law systems do recognize the rulings of

judges as law, as well as the binding nature of stare decisis, the legislature may very well place

hurdles in front of the realization of this provision for the sake of other interests. The abortion

case progression presented above represents one such example of this competency of the

legislature to either block or promote the realization of a right, as had been interpreted within a

constitutional provision.

In examining the second issue of “unlimited time,” one runs into the issue that court cases

represent a particular time-slice of an interpretation of a constitutional provision and their

respective arguments for and against. Prior to the 1800s, politicians would not have even

dreamed of discussing suffrage rights for blacks or women, even though a right to suffrage for

“citizens” had been understood in the constitution for some time.19 Before the tragedy of 9/11,

policymakers had never worked with legal terms that classified what counted as “international

terrorism.” Presently, we have no conceptions of what new rights classifications may emerge in

the future that would require further interpretations of our constitutional provisions. For all we

know, a discovery of life outside Earth may very well consider us to completely reconceive

notions of “human” rights. Thus, in contrast to our “unitary judge,” judges in our political

systems must decide cases based on the collection of understandings of provisions that they

presently possess.

To date, no theory exists that has comprehensively resolved this issue. Many

constitutional theories sit close to either end of a spectrum with “originalism” on one end and the

idea of “judicial activism” on the other. As mentioned above, interpreting cases in this manner

fails to recognize that the interpretation of provisions naturally develops and changes over time,

19
The extent to which “citizen” was inclusive clearly developed over time. The earliest understood right to
vote comes from Article VI, section 3, which states that “no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United States.” See: “Constitution of the United
States.” National Archives. 2013. <http://www.archives.gov/exhibits/charters/constitution_transcript.html>.

6.
and are passed through the different capacities of political actors between the interpretation and

implementation processes. “Landmark” cases rarely settle interpretation of a constitutional

provision in its entirety, as new political concerns may very well require the establishment of

qualifications or exceptions to such provisions.

Together, these separate considerations of a theoretical “middle ground” for judicial

review suggest that the arrival at a “right answer” requires several components.20 For one, our

political institutions, with their given sets of capacities, cannot unilaterally interpret a

constitutional provision and realize its fully implemented form, particularly when situated within

a system that recognizes the separation of powers. Put another way, while the Court possesses

the competency to interpret, the legislature holds the power to implement, with both aspects being

prerequisites for the realization of a provision. Secondly, since interpretation and implementation

are separate processes that require both coordination and time, it may very well be the case that

this process would better be conceived as a continual “back and forth” interaction between

political actors, rather than as a set of discrete cases. Both of these components represent, crudely

put, the main tenets of an intermediary role for judicial review.

Considering the possibility of this role from a purely empirical standpoint will be a much

easier task. The high frequency at which legislatures, judiciaries, and other political actors within

constitutional democracies have played off of one another’s competencies in order to elaborate

the substance of a constitutional provision over time would show that a “middle ground” for

judicial review does exist, at least in practice. Overviewing this part of the argument will emerge

through the presentation of the case studies, a task that will be outlined in the next chapter. For

now, let us continue to focus on classifying this “middle ground” in more theoretical terms, using

20
As the examination and reframing of Dworkin’s “right answer thesis” implies, this theoretical account is
necessarily grounded in the realities of a constitutionally democratic order, namely the separation of
powers.

7.
general examples for purposes of illustration and in order to foreshadow the issues that will be

explored in the later chapters.

Defining a Middle Ground Between Activism and Restraint

From the theoretical discussion above, reframed from Dworkinian terms, we have arrived

at two general characteristics about the role that judicial review should take within a

constitutional democracy. On one hand, the judiciary cannot unilaterally determine the

interpretation and implementation of constitutional provisions, and must recognize the

complementary capacities of different political actors in realizing this goal. Further, the full

realization of a constitutional provision is better conceived as an ongoing process that occurs

between the legislature, judiciary, executive, and other political actors. Thus, simply looking at

the judicial review of discrete cases overlooks the larger picture of the development of such

provisions and their associated rights.

These two characteristics have taken form in various theories on the role of judicial

review. Lawrence Sager, a Professor of Law at the University of Texas, posited a “justice-

seeking account” of the role of judicial review, one that conceives judges in a partnership with

democratically elected decision makers, a partnership that develops finer elaborations of

constitutional provisions over the course of time.21 Meanwhile Kent Roach, a constitutional

scholar from the University of Toronto Faculty of Law, contends that the relationship between

political actors over a policy question has more of a dialogic character. He finds that certain

structural features of common law systems allow for judicial dialogue to act as something of a

21
Sager, Lawrence. Justice in Plainclothes. New Haven: Yale Univ. Press, 2004. Pp. 8-10.

8.
“half-way house between legislative and judicial supremacy.”22 Each of these theories will be

briefly explored in this section.

In evaluating both theories, it will become apparent that neither theory completely

addresses some of the practical realities that occur among the government branches of political

systems.23 Particularly, both theories assume some level of cooperation among the government

branches, and do not completely account for cases in which the branches are at a complete

disagreement over the merits of an issue. Further, neither theory explicitly accounts for the role

that periphery political actors can take in shaping the development of a provision over time,

particularly in cases where the government branches are failing to fulfill their duties.

Partnership Between Branches?

In approaching the question from a purely theoretical standpoint, Lawrence Sager seeks

to give content to the oft-debated role that judicial review should take in a democracy. To do so,

he first lays out a spectrum of alternatives, which is reproduced below.24

The extreme alternatives on this spectrum largely represent the ways the Court has typically been

conceived – as either an activist guardian of abstract principles of justice, or as a restrained body

that intervenes only in cases where the Constitution literally enables it to do so. The middle

22
Roach, Kent. “Dialogic Judicial Review and its Critics.” Supreme Court Law Review. Vol. 23(2): 2004,
pp. 49-104. Pg. 104.
23
Admittedly, it will be noted that Sager’s conception of judicial review is purely theoretical, and as such,
this examination cannot be a formal objection to his formulation. Rather, the considerations explored will
motivate the need for a conception that seeks to be grounded in the present practices of political branches.
24
Sager 23.

9.
section represents Sager’s original contribution to the question. Here, he conceives a partnership

between the judiciary and the democratically elected branches, in which the institutions share

their complementary duties in order to elaborate upon a provision. Within this category, Sager

makes two further distinctions of types of judicial review – democratarian review, and a justice-

seeking account.25 Working from a perspective based on justice, he largely focuses on the latter,

as democratarian review only allows judicial intervention insofar as it improves the operation of

democratic processes, a rather restricted prerogative that does not acknowledge the potential

benefits of more activist decisions.26

In giving substance to a justice-seeking partnership in judicial review, Sager begins by

noting the structural characteristics that give justices the competency to act as objective judges of

laws against constitutional principles. Many of these have been discussed at length in arguments

for judicial review – being appointed for life, having stable job security, and being separated from

the pressures faced by the parties that created the law.27 He then notes that these characteristics

make judges a suitable vehicle for maintaining consistent principles over time – “[j]udges are

responsible to both past decisions and future possibilities; they must test the principles upon

which they are tempted to rely against these other outcomes, real and imagined. The enterprise of

adjudication is thus a kind of institutional reflective equilibration.”28 Here, Sager importantly

ensures that his theory fits one of the requisites of an intermediary position for review – the

consideration of the meaning of constitutional provisions over time, rather than over discrete

cases.

From here, Sager outlines his definition of “partnership,” which conceives judges as “not

merely or even primarily instruction takers; their independent normative judgment is expected

and welcomed. The object of this partnership is the project of bringing our political community

25
Ibid 19-22.
26
Ibid 22.
27
Ibid 74.
28
Ibid 75.

10.
into better conformity with fundamental requirements of political justice.”29 Such an account,

however, does not give constitutional judges the reins to decide on whatever issue they see fit.

This point becomes clear through Sager’s outline of judicial underenforcement. Here, he notes

that certain principles of political justice are “wrapped in complex choices of strategy and

responsibility that are properly the responsibility of popular political institutions. When

confronting constitutional principles in this way, the judiciary justifiably declines to enforce the

Constitution to its outermost margins, and defers – at least in first instance – to the political

branches of the state and federal governments.”30 Social welfare and social discrimination reform

represent two examples that he claims are subject to this standard.

Thus, Sager’s account seems to provide a theoretical “middle ground” for judicial review.

On one hand, it values the independent competency of the Court to objectively interpret questions

that invoke the fundamental principles of constitutional law. The justice-seeking account does,

on the other hand, recognize the need of the Court to occasionally defer to other branches,

recognizing the capacity of the legislature or the executive to better tailor specific policy to the

will of the people.

While Sager’s account does paint a clear portrait of how an intermediary position may

work in theory, once one takes a step into the actual practices of the government branches, the

“partnership” description of the relationship between the political branches and the Court seems

to be too optimistic. Specifically, Sager’s account does not account for the situations in which the

judiciary and governmental branches are diametrically opposed to one another in terms of the

specific policy. When the United States Supreme Court confronted the other political branches

over habeas rights for accused terrorists, for example, it found itself facing a legislature and an

executive that were repeatedly telling the Court to steer clear of the matter altogether. How does

partnership work in those situations? Since Sager’s formulation was focused more on an

29
Ibid 76.
30
Ibid 87.

11.
ideological account, it did not focus on the practical considerations that may emerge along the

thin boundaries between fundamental rights and state interests when interpreting a constitutional

provision.

Further, since Sager’s account focuses on an ideal interaction between political branches,

it does not account for the essential role that outside political actors may take in shaping the

interpretation of a provision. For example, if the legislature were to grossly underenforce a

decision of the Court, popular opinion of that legislature may diminish to a point that the political

parties shift drastically in the following election. Alternatively, NGOs may choose to highlight

this underenforcement of the legislature, opening the political system up to international

pressures. As the case studies in this thesis will show, both of these scenarios have had a

considerable impact on the realization of fundamental constitutional provisions in cases where

Sager’s conception of inter-branch partnership failed.

Dialogic Judicial Review?

Another developed approach to judicial review in constitutional theory has emerged from

Canadian academia. Drawing largely from the Canadian Charter of Rights and Freedoms, Kent

Roach argues that structural mechanisms within constitutions – or a Bill of Rights for that matter

– allow for a relationship between the government branches that avoids either judiciary or

legislative supremacy.31 Simply defined, Roach defines dialogic judicial review as “any

constitutional design that allow rights, as contained in a bill of rights and as interpreted by the

courts, to be limited or overridden by the ordinary legislation of a democratically enacted

legislature.”32 The “overridden” qualification clearly pertains to the experience of the

“notwithstanding clause,” a unique part of Canadian jurisprudence that enables the legislature to

31
Roach 54-55.
32
Ibid 55.

12.
override the ruling of the Supreme Court, enabling the law in question to remain in force for five

years before being reconsidered.33 Meanwhile, the “limited” part, in focusing on rights that seem

intentionally to be open to limitations or exceptions, applies to constitutional democracies more

generally. As Peter Hogg and Allison Bushell Thorton note, whenever “a judicial decision is

open to legislative reversal, modification, or avoidance, then it is meaningful to regard the

relationship between the Court and the competent body as a dialogue.”34 Roach agrees with this

analysis, noting that the “key to understanding dialogue under the Charter or other modern bills of

rights is that those constitutional documents allow court decisions about rights to be revised or

rejected by ordinary legislation.”35

Judicial dialogue as a theory will be developed further in the context of its Canadian case

study. For now, however, it seems simple to glean enough from this brief presentation of the

theory to pose basic objections, which will also be discussed at length in evaluating “dialogue” as

a generalizable theory of judicial review. For one, half of the theory turns on cases in which the

legislature can simply override the rulings of Courts. Roach outlines section 33 of the Canadian

Charter, the “notwithstanding clause,” as a “main structural device for dialogue,” despite it only

having been used once on the federal level in Canadian jurisprudence.36 With this in mind, it

seems that “dialogue” may only be generalized to cases in which the legislature limits the rulings

of courts.

At this point, Roach opens himself up to the objection that, practically speaking, the

courts have the final word in most constitutional democracies, a standing that tends to be

respected empirically. In response to this issue, Roach only assumes the need for further

33
The “notwithstanding clause” will be covered in more detail in chapter three. Its text can be seen in full
in: McMahon, Kevin J. “Notwithstanding the Notwithstanding Clause: Political Regime and Constitutional
Politics in the United States and Canada.” Canadian Foreign Policy. Vol. 12(3): Jul. 2005, pp. 45-52, 54.
34
Hogg, Peter, and Allison Bushell. “The Charter Dialogue Between Courts and Legislatures. Osgoode
Hall Law Journal. V Vol. 35(1): 1997, pp. 75-124. Pg. 79.
35
Roach 56.
36
Roach 60. The details of this case, along with its evaluation, will be explored in further detail in the third
chapter.

13.
empirical and comparative study. Other than that, he assumes that “popular perceptions of

judicial review may still be rooted in an older version of judicial supremacy and may not have

caught up to new understandings of dialogic judicial review.”37 Yet such a response simply

acknowledges its own irrelevance in addressing cases outside of the Canadian system. Further,

while Roach notes that studies of judicial dialogue should focus on “how particular bills of rights

and judicial decisions influence the process of dialogue between courts and legislatures, and also

the influence of other actors in civil society,” he delegates this important part of his theory to

further studies.38 As this thesis will show, in using a more robust set of case studies and legal

systems, “dialogic judicial review,” while a step in the right direction of describing sustained

judicial review, fails to be generalizable to distinct legal systems, and does not sufficiently

prescribe a role for other political actors outside of the government.

One final issue with judicial dialogue, as posed by Kent Roach, concerns its theoretical

placement among other theories of judicial review that acknowledge the potentially beneficial

nature of varying institutional capacities. As had been done above, Roach reformulates his theory

of judicial dialogue in Dworkinian terms, assigning various political actors their respective roles.

The result? Roach maintains that “the dialogic structure of the Charter makes it possible to have

Dworkin’s Hercules as a judge, but to harness Hercules by ordinary legislation that revises or

reverses his decisions.”39 It seems peculiar that Roach would characterize the Court as being

restrained, since, as mentioned above, the judiciary often has the final word on a matter that

invokes constitutional provisions. It is as if Roach acknowledges that, in practice, the political

branches do not agree over issues, yet does not have a robust set of cases so as to determine how

the various political actors influence one another in reaching an actual interpretation of a

constitutional provision. This conception may seem appropriate to characterize the dynamic

37
Ibid 52-53.
38
Ibid 52.
39
Ibid 69.

14.
between the judiciary and legislature of Canada, yet it remains unclear how the judiciaries of

other systems remain constrained when they do not have articles like the “notwithstanding

clause” in their constitutions – the devise that the legislature would use to “harness” the judiciary.

This theory of dialogue will be considered in further detail within its Canadian context,

foreshadowing the fact that it best remains contained to that case study, and that other

conceptions of intermediary judicial review may better describe the practice of other

jurisprudences. For now, it seems necessary to develop a different form of this “middle ground”

for judicial review, one that acknowledges these conceptual failings of judicial dialogue. The

following section will work to formally develop such a model.

Constitutional Negotiation Defined

Up to this point, we have seen how previous attempts to define an intermediary role for

the judiciary have either remained too theoretical, or they have developed standards that were too

specific to a particular system. Sager’s model of “partnership” in his justice-seeking account

promotes an ideal in that it does not explicitly address how the model would bend when applied

to various constitutional democracies, complete with legislatures and judiciaries that may very

well have entirely opposing views on a particular constitutional question. Meanwhile, Roach’s

model of “judicial dialogue” rests on structures of the Canadian Charter, and thus does not

sufficiently address the reality that other judiciaries often have the last word on many issues that

invoke constitutional provisions. Is there some conception of a “middle ground” for judicial

review, one that sufficiently addresses these shortcomings?

The answer, I suggest, is yes. This section will work to develop “constitutional

negotiation” as a conception within which to orient judicial review. “Constitutional negotiation,”

examined through example and formal terms below, represents a form of judicial review that

represents an ongoing relationship with the other political branches, as well as periphery actors,

15.
as a means to elaborate and compromise over the interpretation of a constitutional provision, as

well as qualifications that may serve to legitimately temper the enforcement of such a provision

over time. Constitutional negotiation, like “judicial dialogue” is a process that gradually

elaborates and expounds upon provisions over time, using the varying capacities of different

political actors as a vital resource. As will be shown, constitutional negotiation is both practice-

based and structure-dependent – unlike dialogue, which relies entirely upon structural

considerations.

After having defined this theory in both theoretical and experiential terms, some work in

this section will go towards further distinguishing “constitutional negotiation” from “partnership”

and “dialogue.” While procedurally similar to “judicial dialogue,” “constitutional negotiation”

will differ both semantically and substantially from this theory, making it a viable alternative for

elaborating upon the role of judicial review within a constitutional order.

A Brief Hungarian Case Study

To give a theory of “constitutional negotiation” its own development outside of “judicial

dialogue” theory, let us briefly consider its use in the development of the Hungarian

Constitutional Court, the first time that the concept had been used in a manner consistent with our

purposes. Writing in 2003, Kim Lane Scheppele provides an examination of the jurisprudence of

the Hungarian Constitutional Court in its first five years of operation, holding that the

examination of newer courts is important “not because they are different in kind from what

becomes normal politics, but precisely because they reveal in sharper relief the problems buried

in what passes for normal in ‘consolidated’ democracies.”40

40
Scheppele, Kim Lane. “Judicial Empowerment and Democracy.” International Sociology. Vol. 18(1):
Mar. 2003, pp. 225-244. Pg. 226.

16.
 In her examination of Hungary, Scheppele notes that, since the country was launching

into its first experiment with democracy, the Constitutional Court had a large latitude in

evaluating laws passed by the newly-established parliament, a latitude of which it took advantage

– nearly one law out of every three passed in Hungary was struck down by the Court during the

early 1990s.41 When paired with the wide variety of competencies to review laws – via

unconstitutional omissions, constitutional complaints, and any constitutional questions raised in

lower courts42 – the latitude given to the Court afforded it with many opportunities to review laws

on constitutional grounds.

When the laws that were struck down by the Court returned to the legislature, the

parliament nearly always complied with the mandate to redraft the laws in a manner that rendered

them constitutional.43 However, in doing so, Scheppele notes how the revised laws “were

positioned not at the point that the constitutional court said was required, but rather somewhere in

between the initial law that the parliament passed and the constitutional court’s requirements.”44

In examining this phenomenon, Scheppele puts her finger on a concept that she terms

“constitutional negotiation.” Accounting for what happened in these cases, she states that:

After the court issued its decisions requiring revision of specific laws, the

parliament would rewrite the laws, attending to major things that the court had

required, but finding new ways to get at what the MPs had originally wanted.

The court would then review the new law, sometimes requiring further changes,

sometimes finding that parliament’s changes were sufficient. While neither side

would call it this, these successive waves of legislation, followed by

41
Ibid 228.
42
Ibid 228-229. These modes of access to the Constitutional Court, not available in common law systems,
will be explored in more detail in the following chapter, in the context of asking whether they are required
to facilitate negotiations. For now, it is mainly important to note that the Court had a wide competency to
review Hungarian laws.
43
Ibid 299.
44
Ibid 230.

17.
 constitutional review, followed by revision of laws and further constitutional

review produced something like a negotiation about the proper policy.45

From this account, we arrive at a simple account of the process that constitutes “constitutional

negotiation.” Yet is this account generalizable from the Hungarian experience? Put another way,

can the process be put in sufficiently formal terms?

Constitutional Negotiation as an Intermediary Conception of Judicial Review

From this example, it seems possible to glean a general process that would occur through

constitutional negotiation. This process can be construed as a general turn-by-turn interaction

between the legislature, judiciary, and other political actors, one that generally tends towards an

intermediary ground in balancing the interpretation of a constitutional provision with political

attempts to qualify such a provision, as well as issues surrounding the implementation of policies

related to these provisions in question. Visually, this dynamic has been represented by a figure

depicted in the Appendix, and this section will work to elaborate upon the steps presented in this

model of constitutional negotiation.

At the first stage, an executive or legislature acts in a way that either debatably or

blatantly transgresses a provision that is either explicitly or minimally elaborated within the

constitution. While this transgression normally takes the form of legislation, it is not required to

do so. Executive orders, referenda, or even the habitual practices of government institutions over

time may warrant a step to the next stage.

The following stage involves the harm caused by the actual or perceived infringement of

the constitutional provision by the action. Determining whether the harm is real, sufficient, or

widespread enough to strike down the original action will be the work of later stages. For now,

45
Ibid.

18.
all that matters is that constituents subject to the action in question find it sufficiently harmful so

as to invoke the authority of the judiciary.

At the third stage of the process, the Court considers the case before deciding. Here, the

Court hears the full defense of the original action, and considers whether a qualification on the

constitutional provision is warranted by the interests pursued by the original actor. It is at this

point that the original terms of negotiation are completely laid out for consideration.

The fourth step, one on which the current theories of judicial review continue to focus,

turns on the decision of the Court over the issue. Put in the most simple terms possible, the Court

may either uphold the action as constitutional,46 or strike down the action as it is currently

elaborated. The extent to which the Court elaborates upon the provision that had been considered

in the case will determine whether negotiation continues to begin a second iteration in the

following stage.

At this point, the process thus far has simply described the procedure of bringing a case

to a court of last resort and receiving a binding decision on the issue. Most theories of

constitutional adjudication evaluate the position of the Court on these terms. Constitutional

negotiation, however, sees these stages as one part within an overall process that may contain

multiple iterations of these stages over time. With each successive iteration of these stages, the

constitutional provisions in question, along with minimum standards of qualifying and

implementing these provisions in law, are more clearly and completely defined.

Several unique possibilities open up once the issue sees the initiation of another iteration

of this four-stage process. Should the original actor decide to respond to the court of last resort, it

may do so by revising its action in order to minimally uphold the limits set by the decision. In

this case, the state interest becomes framed in constitutional terms, and continues to impose

46
Of course, tied to this option is the decision to dismiss the case on procedural grounds, which reverts the
case back to the decision of a lower court. Yet this option is nevertheless reducible to the two options of
either maintaining the status quo of the act, or reversing it entirely.

19.
qualifications on the provision in accordance with the interest pursued. Figure 2 below depicts

this process in general terms.

In the figure, “a” represents the first stage. The perceived harm constitutes an interpretation of

the unelaborated provision, represented by “d” in the figure. In deciding the case, the Court

elaborates upon the provision and, in striking the original action down, establishes more concrete

boundaries, depicted as the space “b—d” in the figure, within which a constitutional qualification

of the provision must fall.47 The revision on part of the original actor involves changing the

policy such that it remains within these boundaries, yet as close to the original policy as possible.

This is represented in the figure by the transition from “a” to “a’.” The idea of constitutional

negotiation, then, is that, with each successive iteration, the constitutional boundaries surrounding

the elaboration of the provision become narrower over time.

In the opposite case, in which the original policy was upheld by the Court, the original

actor may gravitate towards the constitutional boundaries of the elaborated provision. This

scenario is represented in a similar manner below.

47
This may even occur in cases where the Court rejects the policy out of hand, and simply reiterates the
unqualified right as stated in the Constitution. In this case, the legislature, in devising a revised policy, may
interpret the Court as simply having struck policy “a” down, but not any policy that is “not ‘a’.”

20.
In this case, the revised policy would move towards the border, blurring its constitutional status

and motivating another case on the issue. These two scenarios represent an important point about

the position of the original actor to respond in constitutional negotiation. In drawing out an

elaboration of the extent to which a provision may be qualified, via the Court’s decision, the

original actor has maneuvering ground to adjust its interests accordingly, shaping a policy that

sits right at the border between constitutionality and unconstitutionality.

What happens if the original actor simply ignores the decision handed down by the

Court? Alternatively, what if the Court upholds the original action as a matter of deference to the

original actor? Has negotiation ended, with the policy of the legislature or executive reigning

supreme? At this point, constitutional negotiation acknowledges the role that periphery actors

may take in shaping revisions in the original policy. Periphery actors may include any institution

or constituent group that takes an indirect role in shaping the policies of the branches of

government. Examples that will be considered in later chapters of this thesis will include

international organizations, NGOs, and social movements formed by citizens.

Periphery actors can shape policy in two ways. In the case of outright deference on part

of the Court, they can bring awareness of related concerns that may necessitate a reconsideration

of the issue. For example, if a policy or decision runs against international commitments, the

international community may step in to remind the national government of these treaties. Such

considerations may then become a factor if the policy is reconsidered by the judiciary or the

legislature down the road.

21.
 In the cases where the original actor simply ignores a sweeping decision from the Court,

periphery actors may mobilize to hold the original actor accountable in implementing the

requirements of the decision. For example, social movements or NGOs may move to make the

legislature’s noncompliance transparent, resulting in a decreased approval of government policy.

Such a decreased approval rating may serve to motivate opposing political parties to run on

platforms that champion compliance with the courts over these issues in order to attract voters.

While these roles of periphery actors may seem speculative when referred to in theory, the case

studies that will be explored will detail how both of these scenarios have indeed taken place, a

fact that underscores the importance of these actors in constitutional negotiation.

Taken together, all of these political actors work within their capacities to negotiate

further elaborations and qualifications of constitutional provisions, given the continuation of

cases presented to the Court over time. In cases where the negotiation between the branches hits

a standstill, periphery actors may intervene to encourage further development of the laws and

rights in question. Thus, this model of constitutional negotiation satisfies both of the theoretical

requirements for a “middle ground” of judicial review that were outlined at the outset.

Having established these theoretical grounds for constitutional negotiation, it makes

sense to determine whether this model robustly applies to the actual practices and structures of

constitutional democracies. The next chapter, in reviewing the case studies to be considered, will

outline an approach to accomplishing this task.

22.
 Case Studies for Comparative Analysis

The requirements of political justice are themselves a matter of principle and

often are best expressed or reflected upon in abstract terms; but the ability or
tendency of real-world institutions to make decisions in conformity with those
requirements is an exquisitely practical matter. In the end, confidence in this
aspect of our constitutional practice may depend upon an assessment of our
actual national experience in comparison with the experience of other nations.

– Lawrence Sager, 2004

Having defined a general theory for sustained judicial review, let us now outline the

manner in which this thesis will proceed. In order to test the external validity of this theory, it is

necessary to examine the extent to which constitutional negotiation takes place among the

political actors of various constitutional democracies. In using a comparative approach, this

thesis contends that a negotiative approach to judicial review over time cuts across countries and

occurs irrespective of legal traditions. Whether a country practices civil law or common law,

Romantic traditions or Germanic traditions, or whether the country’s constitution was enacted

fifty years ago or two hundred years ago, constitutional negotiations will take place among

political actors as long as the nation in question respects some institutionalized separation of

powers and judicial review.

Further, the issues and rights in question will show that constitutional negotiation, as a

conception of judicial review, is alive and well in addressing the problems presently faced by

constitutional democracies throughout the world. All of the case studies that will follow revolve

around recent events. Indeed, some of the cases are still being debated between political actors,

and this perspective of constitutional negotiation affords us with the opportunity to gain an

informed perspective on multiple positions on such issues.

The sections that follow will introduce this theory in an empirical manner. First, as a

means to illustrate the points made above, I will briefly touch upon the topics of the case studies,

23.
which will become the subjects of the next three chapters. The next section will address some

introductory considerations on the differences between legal systems, a necessary concern to

consider before developing the case studies in further detail. Common law and civil law systems

operate in vastly different ways, and it would be prudent to examine some of these distinctions in

order to remain cognizant of any institutional differences that may make the practice of

constitutional negotiations more or less possible. Despite the vastly diverse practices within legal

systems, however, I will contend that constitutional negotiation is a practice that cuts across the

boundaries between constitutional democracies, an argument that will motivate a careful

examination of each case study.

Comparative Cases and Political Issues

To prove that the theoretical model of negotiating rights actually has roots in the practices

of political institutions, it is necessary to develop empirical accounts of how constitutional

negotiations have been conducted in constitutional democracies. For now, let us briefly run

through the countries and issues to be examined, as a means to introduce the topics of the

following chapters.

The next chapter will focus on an examination of research that has already been done on

case progressions within common law systems. Particularly, the chapter will evaluate various

theories used to classify the jurisprudences of the Canadian and American Supreme Courts in

response to the new legal concerns raised by post-9/11 terrorism. Kent Roach, a proponent of

“judicial dialogue” theory, contends that “dialogue” aptly describes the mechanisms within the

Canadian Charter that allow for the discussion of court cases involving the competency to deport

permanent residents due to “national security risks.” Thus, the account of the Canadian

experience will begin with an elaborated discussion of “judicial dialogue” within Canadian

jurisprudence, in order to further contrast “constitutional negotiation” from dialogue, as well as to

24.
argue that the semantic and practical differences between “dialogue” and “negotiation” actually

render the latter as a more apt description of the Canadian case.

The jurisprudence of the United States Supreme Court, also a topic of the third chapter,

will focus on the development of a “new judicial deference” on part of the Court in response to

interpretations of newly developing rights to habeas corpus. While, with old deference, the Court

allowed the executive to unilaterally act in times of crisis, “new deference” saw a division

between interpreting the right and implementing the remedy. In responding to cases involving

habeas rights of Guantánamo detainees, the Supreme Court asserted a broad right to habeas trials,

while leaving the task of elaborating on the details of such trials to Congress.

Taken together, these two case studies for which theories have already been developed

provide the opportunity to show “constitutional negotiation” as a more robust and generalizable

theory. Specifically, it will become clear that “constitutional negotiation” will apply to both

common law jurisprudences in a way that “judicial dialogue” and “new judicial deference” do not

– while each of these theories remain apt for describing their respective cases, neither can be

generalized to both systems in the way that a negotiative approach to judicial review can.

The fourth chapter will move away from common law systems, and into rather uncharted

territory. Mainstream legal theories have not to date conducted a substantial examination of the

Italian legal system, thus leaving the country’s jurisprudence as something of hole in comparative

constitutional studies. Thus, one of the civil law case studies will be on the Italian Corte

Costituzionale, focusing on its response to one of the more enduring issues in Italian

jurisprudence – the parliamentary immunity enjoyed by former Prime Minister Silvio Berlusconi

during his regime, particularly amid accusations of tax fraud, bribery, and sex scandals that have

been raised over the past couple of decades. Specifically, the account will show that, contrary to

popular opinion, the courts been as active as their competencies currently allow in denying

Berlusoni the legal mechanisms of immunity that he has continually sought to implement,

negotiating that certain duties of office may constitute an impediment to appearing in court, it is

25.
for the courts to decide whether an actual impediment actually exists. As will be shown, the

continued impunity enjoyed by the former Prime Minister on a practical level results from the

structural place of the judicial system with relation to the other branches within the legal system.

Given that the Court, although it may exert flexibility in reforming its competencies, has

remained complacent with its position within the legal system, it is clear that the intervention of

other political actors has been necessary to resolve the issue. Thus, this case study will provide

the perfect opportunity to study the potential of constitutional negotiations to move to “periphery

political actors.” Specifically, the social movements started in response to the Berlusconi regime,

and the changing constituencies of the political parties, will show how outside political actors can

“course correct” a legislature that fails to give adequate respect to the constitutional values

espoused by the courts.

After Italy, our examination will transition to the Federal German Republic, the civil law

system that has perhaps received the most discussion in the discipline of comparative

constitutional law. The examination of Germany will focus on the jurisprudence of the

Bundesverfassungsgericht with respect to the gradual integration of the European Union. Not

only will this examination show how the German Court split the audience of negotiation as the

cases progressed, but it will also provide an informed account of the Court’s most recent decision

on European integration, European Stability Mechanism I. Most constitutional scholars saw this

decision as undue deference on part of the Court, particularly since the decision allowed the

German government to contribute more than its current 2013 budget to the European Stability

Mechanism (ESM), a EU institution designed to act as a financial insurance mechanism to stave

off the collapse of the Euro.48 Further, these same scholars contend that, in deferring to the

European Union, the Court essentially handed the EU a blank check in deciding what constitutes

48
For more information about the functioning of the ESM, see: “About ESM.” European Stability
Mechanism. 25 Mar. 2013. <http://www.esm.europa.eu/about/index.htm>. The workings of the
institution, and the extent to which German national sovereignty was and still is at stake, will be explored
in the fifth chapter.

26.
national sovereignty for member states within the Eurozone. However, an examination through

the lens of constitutional negotiation will show that, in splitting audiences with which it

negotiated, the Court was able to uphold its previous case law on the EU integration, while

simultaneously empowering the German Bundestag and Bundesrat to define the practical limits

of sovereignty.

Together, these case studies will show negotiation as a real practice that occurs among

political actors within constitutional democracies. The concluding chapter will consolidate these

comparative findings, and use them to ponder more theoretical questions about constitutional

negotiation. Is an intermediary conception of judicial review better than the alternatives for cases

in which it would apply? Does constitutional negotiation, in allowing for the seemingly endless

elaboration of a provision, simply reduce itself to skepticism over a right answer? Drawing from

the case studies examined, it will be simple work to dispel these concerns, rendering

constitutional negotiation as a unique theory for an intermediary form of judicial review.

Civil Law vs. Common Law Considerations

Before launching into an examination of the four countries, it would be prudent to briefly

consider any differences between the legal systems that may influence the form that constitutional

negotiation may take. First, this section will explore the differences between Supreme Courts and

Constitutional Courts, focusing on the distinct means by which citizens can put forth issues to

each institution. Next, we will briefly turn through the different uses of stare decisis in each type

of jurisprudence, and how this difference could theoretically alter the form of negotiations taken

within a constitutional system. To the extent possible, this account will be tailored specifically to

the countries that will be examined, as a means to remain succinct while still clarifying

procedural differences that will be encountered across the case studies.

27.
Supreme Courts vs. Constitutional Courts

One of the clearest differences between the case studies that will be considered centers on

the types of courts that are relevant to each country. While lower courts will undoubtedly receive

some attention throughout this thesis, the bulk of the analysis will center on the courts that are

most specifically oriented to constitutional interpretation. For our present purposes, this

necessarily limits the analysis to the distinction between a Supreme Court and a Constitutional

Court.

A Supreme Court is the court of last resort in a common law system. Since constitutional

review is decentralized within most common law systems – that is, within countries that practice

judicial review, all judges have the authority to interpret the constitutionality of a law49 – a

Supreme Court would necessarily have the final say on a constitutional question should the case

reach that level of appeal. As a court that accepts appeals from lower courts,50 Supreme Courts

necessarily have discretion in selecting the cases that come before it, with the ability to select as

many or as few cases as desired, which essentially leads to a flexibility in arranging a docket of

issues to be addressed.

By contrast, a Constitutional Court represents an institution that is completely distinct

from any common law tradition. Originally devised by Hans Kelsen, a constitutional theorist in

20th century Austria, a Constitutional Court works to centralize the process of constitutional

49
Some common law systems, such as the United Kingdom, do not practice judicial review, opting for
parliamentary supremacy instead. See: Bingham, Thomas. The Rule of Law. London: Penguin Publishers,
2010. Pp. 160-170. Likewise, some common law systems, such as Australia and New Zealand, have
Supreme Courts that exercise judicial review only sparingly. See: Gardbaum, Stephen. “The New
Commonwealth Model of Constitutionalism.” American Journal of Comparative Law. Vol. 49: 2001,
pp.707-760. Pp. 727-732.
50
Supreme Courts do have narrow jurisdiction over other types of issues. In the United States, for
example, Article III of the Constitution states that the judicial power of the Supreme Court extends “to all
Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime
Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or
more States;—between a State and Citizens of another State;-between Citizens of different States;—
between Citizens of the same State claiming Lands under Grants of different States, and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects.” See: “A Brief Overview of the Supreme
Court.” Supreme Court of the United States. 30 Mar. 2013. <http://www.supremecourt.gov/about/
briefoverview.aspx>.

28.
review.51 In consolidating the role of constitutional review, a Constitutional Court generally

differs from a Supreme Court in several important ways. First, Constitutional Courts possess “a

monopoly on the power to invalidate infra-constitutional legal norms, including statutes, as

unconstitutional.”52 As mentioned above, any judge within a common law system that practices

judicial review has that authority – hence the term “decentralized” review.

Second, in reviewing only constitutional norms, Constitutional Courts are further

detached from the political influences of government branches. This is typically illustrated

further through structural aspects within a Constitutional Court that are aimed at avoiding

politicization. For example, in both Italy and Germany, the votes cast on part of the judges are

not publicized, giving the impression that the institution votes as one.53

Another way the courts differ involves the means of accessing each court. As a separate

institution, a Constitutional Court has various means of access that are generally unavailable to

Supreme Courts. For example, the Federal Constitutional Court of Germany hears a wide range

of case-types, including concrete review of constitutional questions arising from lower court

cases, considerations of abstract norms, advisory opinions given to Parliament when it is drafting

a law, disputes between federal organs, federal-state conflicts, and constitutional complaints, a

last resort remedy in which the petitioner demonstrates a concrete harm caused by a manifest

infringement of a right.54

Such diverse means of access ties into another fundamental difference between a

Supreme Court and a Constitutional Court. While being limited to questions of constitutional

51
Sweet, Alec Stone. “Constitutional Courts.” The Oxford Handbook of Comparative Constitutional Law.
Ed. Michel Rosenfeld and András Sajó. Oxford: Oxford Univ. Press, 2012. Pp. 816-830. Pg. 817. Citing:
Kelsen, Hans. “La garantie juridictionelle de la constitution.” Revue de Droit Public. Vol. 45(197): 1928.
52
Ibid 818.
53
As Donald Kommers notes, “Personalized dissenting opinions on the Federal Constitutional Court were
not allowed until 1971 and since then, as now, they are relatively rare. In 2007 and 2008, for example, only
13 percent of the Court’s decisions featured dissenting opinions.” See: Kommers, Donald. The
Constitutional Jurisprudence of the Federal Republic of Germany. Durham: Duke Univ. Press, 2013.
54
Kommers 15-24.

29.
import seems to lesson the volume of total cases faced by the Court, in reality it gives the

institution much less latitude in selecting cases and forming a docket of issues. Since a

Constitutional Court must respond to every case put before it, it is clear the Supreme Courts can

better tailor their jurisprudence to specific political or social concerns. Constitutional Courts can

only do this to a very limited extent.55

Aside from the differences between a Supreme Court and a Constitutional Court, there

are also salient differences between forms of the latter institution. In particular, the structure and

competencies of the Italian Constitutional Court differ in several important ways from the

German Court. As one example – the two courts differ in their means of access. While the

German Court boasts all of the means elaborated above, the Italian Court exerts competencies

that bear some resemblances to a common law Supreme Court. For instance, the average citizen

can only access the Italian Court via a posteriori concrete review, often arising from a

constitutional question in the case of a lower court.56 The specific aspects that make the Italian

Court unique will be further explored within its own case study, but for now it is important to

keep in mind the broader differences between the legal systems, and how these differences

influence the flexibility of each court in forming a docket over issues.

The Varied Uses of Stare Decisis

One other salient difference between the two legal traditions concerns the manner in

which both regard state decisis, known more generally as precedent. A short description of the

55
As former Justice Dieter Grimm of the Federal Constitutional Court recounts, in practice the FCC could
shift a case to the bottom of a long list of pending cases as a means to delay deciding on the issue. Such a
tactic, however, only delays what will inevitably become a decision over the issue. I am thankful for
having the opportunity to discuss this point with Justice Grimm.
56
Groppi, Tania. “The Italian Constitutional Court: Towards a ‘Multilevel System of Constitutional
Review?” Constitutional Courts: A Comparative Study. Ed. Andrew Harding and Peter Leyland. London:
Willy, Simmonds, and Hill, 2009. Pp. 125-147. Pp. 128-129.

30.
difference between the two systems will be sufficient to glean a more general point about how

stare decisis may be a relevant factor in constitutional negotiation.

Put as simply as possible, legal reasoning and decisions in common law systems

constitute binding precedent for other courts. For this reason, the interpretation of legislation in

common law opinions tends to be rather extensive. On the constitutional level, the binding nature

of stare decisis tends to be more flexible, allowing for overturns of previous decisions in cases

where the development of constitutional provisions over time requires it. As Justice Brandeis

once noted,

“[s]tare decisis is usually the wise policy, because in most matters it is more

important that the applicable rule of law be settled than that it be settled right. ...

But in cases involving the Federal Constitution, where correction through

legislative action is practically impossible, this Court has often overruled its

earlier decisions. ... This is strikingly true of cases under the due process clause.57

Thus, when ruling on matters of constitutional import, the Supreme Court tends to stick to

precedent, unless there has been a compelling development of rights interpretation that warrants

giving the case another look down the road.

By contrast, the judges of a Constitutional Court are not bound by the same standard.

While judges do maintain some affinity to precedent as a practical means to maintain interpretive

consistency, they are by no means required to do so. Put another way, judges on a Constitutional

Court would face a much lower audience cost of not ruling in accordance with precedent than

would justices on a Supreme Court. Put in terms of the model of constitutional negotiation, one

may expect that civil law systems would have more flexibility in switching the forms of ruling on

part of the Court while going through iterations of the negotiative process.

57
Burnet v. Coronado Oil & Gas Co. 285 U.S. 393, The Supreme Court of the United States. 11 Apr.
1932. Justia. <http://supreme.justia.com/cases/federal/us/285/393/>, at 406–407, 410. Ironically, Justice
Brandeis assumes the inability of legislatures to respond to Court rulings, a position that this thesis will
argue against.

31.
The Room for Negotiation in Diverse Legal Systems

Despite the vast differences between various legal traditions, a close examination of the

case studies will show that constitutional negotiation takes place across these potentially

confounding variables. As we will see in the following chapters, some structural factors –

grounded in differences between civil and common law, or between German law and Italian law –

have directly influenced the path and outcome of constitutional negotiations. Yet the presence of

constitutional negotiation remains a uniting factor among these distinct countries. Thus, while

some differences in legal structure may influence the direction towards which negotiation tends,

they do not completely undermine the occurrence of negotiation over issues of constitutional

import.

With these considerations in mind, let us now turn to the case studies, which will take up

the topics of the next three chapters. As will be shown, the theory of constitutional negotiation

will cut across the differences of these legal systems, and will serve to represent a conception of

judicial review that places the judiciary at a “middle ground” between activism and restraint, and

within an overall process that respects and utilizes the varying capacities of different political

institutions.

32.
 Negotiative Practices in Common Law Systems

Judicial review is not a “veto over the politics of the nation,” but
rather the beginning of a dialogue as to how best to reconcile the
individualistic values of the Charter with the accomplishment of social
and economic policies for the benefit of the community as a whole.

- Peter Hogg and Allison Bushell, 1997

Because our Nation’s past military conflicts have been of limited duration, it
has been possible to leave the outer boundaries of war powers undefined. If, as
some fear, terrorism continues to pose dangerous threats to us for years to come,
the Court might not have this luxury. This result is not inevitable, however. The
political branches, consistent with their independent obligations to interpret
and uphold the Constitution, can engage in a genuine debate about how best
to preserve constitutional values while protecting the Nation from terrorism.

- Justice Anthony Kennedy, 2008

As mentioned in the previous chapter, the discussion on the practice of judicial review

over time in common law systems, to date, has been rather extensive, in both theoretical and

practical terms. Thus, it seems sensible to review the previous research as a means to inform our

consideration of negotiation in civil law systems. As the introductory chapter noted, the theories

of judicial review developed do not explicitly frame the cases in terms of “constitutional

negotiation.” Thus, to the extent possible, this chapter will review the theories of “judicial

dialogue” and “new judicial deference,” and reframe them to a form of constitutional negotiation

that will become comparable to that which occurs in civil law systems.

Judicial dialogue was first extensively elaborated within Canadian jurisprudence, and

several mechanisms within the legal order have lent themselves to this end. The most glaring

example within Canadian law is Section 33 of the Canadian Charter of Rights and Freedoms, also

known as the “notwithstanding clause.” Specifically, this provision "... permits any provincial

legislature or the federal Parliament to enact legislation which will operate notwithstanding that it

33.
may violate certain Charter rights."58 In practice, this legislative override has two limitations.

The first restricts the use of the clause as a means to limit democratic rights, while the second

requires a legislative reenactment after five years.59 Although the “notwithstanding clause” has

existed since 1982, it has only been implemented once on the federal level, due to the fact that it

faces much criticism and public scrutiny.

The key point, however, is that the notwithstanding clause poses a streamlined means to

force deferral from the Canadian Supreme Court. On surface, this possibility severely impedes

the balance of power, as it is commonly understood. Yet more importantly, it motivates

theoretical discussion on the characterization of the empirical and normative relationship between

the legislature and the courts, particularly in cases that serve to elaborate upon qualified rights.60

This consideration has become the focal point of the intellectual and legal debate among

Canadian scholars. Much of the debate has focused on whether such a relationship, as codified

within the Canadian Charter, allows for a “dialogue” between the legislature and the courts over

issues of constitutional importance. While some scholars contend that several sections of the

Charter promote this relationship, others hold that “dialogue” has been overused as a term to

generalize the politics on the ground. This debate, and whether this interaction can be classified

as a form of “dialogue” among the branches of government, will be discussed at length below.

When applied to the practice of the Canadian political branches, it will become simple to

note how the theory lends itself to the semantically similar term “constitutional negotiation.” It

will also become apparent that, in examining the use of the “notwithstanding clause,” and the

Canadian experience with international terrorism after 9/11, “negotiation” becomes a more apt

58
Text of the Canadian Charter, quoted in: McMahon, Kevin J. “Notwithstanding the Notwithstanding
Clause: Political Regime and Constitutional Politics in the United States and Canada.” Canadian Foreign
Policy. Vol. 12(3): Jul. 2005, pp. 45-52, 54. Pg. 46.
59
Ibid.
60
“Qualified rights,” a term that will be used throughout this paper, are those constitutional provisions that
are specifically worded such that they allow modifications or exceptions that are deemed “reasonable” by
the government.

34.
description of the interaction than does “dialogue.” Specifically, it will be seen that a dialogic

character does not lend itself to a consistent account of the Canadian jurisprudence and political

actions regarding post-9/11 terrorism. Rather, as Roach acknowledges, only once the

international community entered the picture as a negotiative party do the Supreme Court cases on

international terrorism show some semblance of consistency.

Meanwhile, south of the Canadian border, the branches of the United States government

have been facing similar theoretical concerns over similar issues, yet in a different dynamic

among the branches. While the Canadian Supreme Court found itself interacting with the

legislature due to the structure of the Charter, the United States Supreme Court found itself at

odds with the limits of executive power during emergencies, due to a lack of elaboration of

branch competencies in the Constitution. Such tension has existed as far back as the onset of the

Civil War, where Lincoln declared his famous – and debatably unconstitutional – Emancipation

Proclamation in 1863. Since that time, deference and negotiation in American jurisprudence has

occurred over issues such as presidential power over military tribunals, Japanese-American

internment during wartime, and habeas corpus rights for suspected combatants and terrorists.

In contrast to the Canadian experience of negotiation, which has largely remained

constant due to its elaboration within the Charter, American negotiation over habeas rights has

emerged from a history of deference, made obvious when considering the Court’s response to

executive action over the years. Examination of the American experience reveals a “new judicial

deference” on part of the Supreme Court, in which the Court explicitly condemns executive

power, yet fails to elaborate the resulting remedy, meaning that the facts on the ground do not

change in light of the ruling.61 This “splitting of the difference” on part of the Court represents a

marked shift in the interpretation of executive powers, and has opened the door to demand

corresponding remedies in accordance with the law, and by extension, has further opened the

61
Scheppele, Kim Lane. “The New Judicial Deference.” Boston University Law Review. Vol. 92(1): Jan.
2012, 89-170. Pg. 123.

35.
door to inter-branch negotiations over the issue of remedy once habeas rights were determined to

have a constitutional character. This progression with the jurisprudence of the United States

Supreme Court will also be further elaborated below.

In concluding this review of the existing literature, it will become clear that

“constitutional negotiation” will be a more applicable term to both common law jurisprudences

than either “judicial dialogue” or “new judicial deference.” “Constitutional negotiation,” unlike

“judicial dialogue,” assumes the possibility of some level of disagreement among the branches. It

also focuses more on the gradual elaboration and implementation of a provision and, unlike “new

judicial deference,” forecasts that the applicable remedy will eventually catch pace with the

demands of the elaborated constitutional provision.

Dialogue in Theory and Practice – The Canadian Experience

As alluded to above, much of the theoretical discussion on dialogic judicial review has

emerged from Canadian jurisprudence. In a simple theoretical sense, many scholars note that, in

common law constitutional democracies, both legislators and judges share the role of creating

law.62 Judicial review is intended as a means to protect constitutional values against majoritarian

reform, and is adequately constrained by checks held by other branches, ensuring that the judges

of courts do not simply become political elites.63

Yet in many ways, such a simplistic account only serves to rehash the age-old debate on

judicial activism and judicial restraint. Theoretical inquiries from Canadian academia have

sought to elaborate a middle ground, in this case “judicial dialogue.” While of an institutional

nature, the checks and balances held against the judicial branch cannot necessarily be construed

62
Elliot, R. Douglas. “Judicial Activism and the Threat to Democracy.” University of New Brunswick Law
Journal. Vol. 53, 2004, pp. 199-204. Pp. 199, 202.
63
McMahon, 46.

36.
as “democratic dialogue,” as these mechanisms abstract too far away from specific policy issues.

Could it be the case that various constitutional mechanisms allow for sustained dialogue between

the judiciary and the legislature over issues of constitutional importance? This question has been

the focus of Canadian legal scholars.

Pinpointing “Dialogue” in the Canadian Charter

In elaborating on this form of dialogue between institutions, Peter Hogg and Allison

Bushell Thornton draw a sophisticated account of this deferential yet dialogic relationship. They

first note that, even though the Supreme Court has the last word on what the law means, dialogue

between the institutions can nonetheless take place:

Where a judicial decision is open to legislative reversal, modification, or

avoidance, then it is meaningful to regard the relationship between the Court and

the competent legislative body as a dialogue. In that case, the judicial decision

causes a public debate in which the Charter values play a more prominent role

than they would if there had been no judicial decision. The legislative body is in

a position to devise a response that is properly respectful of the Charter values

that have been identified by the Court, but which accomplishes the social or

economic objectives that the judicial decision has impeded.64

Important to this account of dialogue is the fact that all political branches, particularly in the

Canadian experience, begin engaging in what has been called “Charter-speak,” justifying their

statutes and positions in constitutional terms rather than in the language of political interests.65

Kent Roach, in outlining ways of conceiving forms of democratic dialogue, contends that this

more nuanced form of relations represents the way in which the two institutions can be construed

64
Hogg, Peter W. and Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures.”
Osgoode Hall Law Journal. Vol. 35(1): 1997, pp. 75-124. Pp. 79-80.
65
Ibid, 101.

37.
as having distinct yet complementary roles in determining the proper interpretation of a legal

issue. Citing Alexander Bickel, he notes that “virtually all important decisions of the Supreme

Court are the beginnings of conversations between the Court and the people and their

representatives. They are never, at the start, conversations between equals. The Court has the

edge… [but] the effectiveness of the judgment universalized depends consent and

administration.”66

The question as to whether a “dialogue” over issues exists, then, can be put in the

following way – if the Court is seen as having the last word on a matter, as having the ability to

arrive at the “right answer” to a legal question of constitutional importance, how is it that the two

branches could be seen as conversing over the right answer? Are mechanisms for dialogue built

into the constitutional structure, or is the dialogue based in practice? Is any conception of

“dialogue” simply a misnomer for a court’s repeated rejection of an unconstitutional law? Any

theory purporting a form of dialogue between the political branches must answer these questions.

Indeed, as Hogg and Bushell Thornton argue, the structure of rights in the Canadian

Charter requires the Supreme Court to defer to legislature in four general ways: (i) through the

infamous “notwithstanding” clause in section 33, (ii) via section 1, which allows for “reasonable

limits” on guaranteed rights, (iii) “qualified rights”67 – such as sections 7, 8, 9, and 12 – which all

allow for the legislature to reframe proposed laws in ways that reasonably meet the requirements

of rights protection in the Charter, particularly when combined with section 1,68 and (iv) the

66
Roach, Kent. The Supreme Court on Trial: Judicial Activism or Democratic Dialogue. Toronto: Irwin
Law, 2001. Pg. 246. In formulating this account Roach rejects two other understandings of how dialogue
operates, one that seek to hold the Court accountable, and one that empowers the branches to interpret and
apply the Constitution separately.
67
See supra, at note 59.
68
The text of the Canadian Charter contains the following sections – section 7 reads: “Everyone has the
right to life, liberty and security of the person and the right not to be deprived thereof except in accordance
with the principles of fundamental justice;” section 8 reads: “Everyone has the right to be secure against
unreasonable search or seizure;” section 9 reads: “Everyone has the right not to be arbitrarily detained or
imprisoned;” while section 12 reads: “Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.” The qualified sections have been italicized for emphasis. For the text of the

38.
ability and discretion of the legislature in implementing remedial measures as a way to secure

equality rights.69 Drawing from a sample of over eighty-eight cases from as far back as 1983,

Hogg and Bushell Thornton note how over fifty-eight of the rulings elicited some legislative

response on part of the legislature, a response that used one of the four mechanisms outlined

above.70 While the authors concede that a legislative response is not always indicative of a

dialogue, it nonetheless points towards cases in which the two branches have succeeded in

conducting some form of exchange over an issue.

As the introduction to this chapter noted, the “notwithstanding clause” under section 33

of the Charter represents the most glaring example of the structural sense in which the judiciary

must defer to the legislature. Yet, as Hogg and Bushell Thornton point out, section 33 has only

been fully invoked once by the Canadian Parliament, in response to the Ford v. Quebec case that

struck down a Québécois law banning the use of languages other than French in commercial

signs.71 Despite it being a clear example, however, the “notwithstanding” clause does not

necessarily embody a “dialogic” character either, as it merely gives the last word to the legislature

rather than promoting a conversation with the judiciary.72 As Hogg and Bushell emphasize, the

unimportance of the “notwithstanding clause” when considered practically stems from “a political

climate of resistance to its use,” suggesting that politically informed citizens also see the benefits

to dialogue between the branches.73

Charter, see: “Constitution Acts, 1867 to 1982.” Justice Laws Website. 15 Mar. 2013. <http://laws-
lois.justice.gc.ca/eng/Const/page-15.html>.
69
Hogg and Bushell, 82.
70
Ibid, 80-81, 96-97, and Hogg, Peter W., Allison A. Bushell, Thornton, and Wade K. Wright. “Charter
Dialogue Revisited – Or ‘Much Ado About Metaphors.’” Osgoode Hall Law Journal. Vol. 45(1): 2007,
pp. 1-65, at pp. 51-52.
71
Hogg and Bushell (1997), 84.
72
Kent Roach calls this more of an “in-your-face” reply over the issue, where the legislature stubbornly
enacts its law anyways, thereby closing discussion on the question, at least for the five-year duration of the
enactment. See: Roach, at 265.
73
Hogg and Bushell (1997), 83.

39.
 As proponents of the dialogic character of legal interpretation argue, section 1 of the

Canadian Charter, and the “qualified rights” under sections 7, 8, 9, and 12, provide a much more

robust form of dialogue between the two branches. Indeed, as Roach notes in regard to section 1:

The limitation clause in the Charter and most other modern bills of rights

facilitates a respectful and constructive conversation that allows each institution

to learn from the other. By providing for the judicial protection of rights, section

1 of the Charter allows the Court to focus the attention of legislatures,

executives, and society on fundamental values and minority rights that might

otherwise be neglected or ignored. By allowing a wide range of reasonable limits

on rights to be prescribed and justified, it also allows the government to educate

both the Court and society about its objectives and the alternatives rejected in

pursuing these objectives. Section 1 is a vehicle for an enriching conversation in

which both the Court and Parliament expand the horizon of each other while

being true to their own distinctive capacities as elected and non-elected

institutions.74

In this account, Roach largely points to the theoretical underpinnings of constitutional negotiation

presented in the introductory chapter, highlighting how the differences in the institutional

capacities of the political branches seem to require some middle form of judicial review as a

means of fully understanding all sides of an issue, and in order to arrive at a more informed “right

answer.”

“Negotiation and “Dialogue” – The Semantic Difference

Not all scholars have argued in support of the “dialogic” character of these inter-branch

relations. In objecting to this conception of judicial review, Carissima Mathen stresses the

74
Roach, 264.

40.
dangers of reducing all qualified rights as having potential for dialogue. In her critique of Hogg

and Bushell Thornton’s formulation of dialogue theory, she draws a distinction between

differences in institutional capacity and the parties that are bound under section 1.75 From here,

she continues to argue that,

A dialogic analysis of section 1 [of the Charter] thus risks confusing the burden

imposed on the government respondent to justify a prima facie infringement with

a privilege or power on the part of the legislature to determine when rights limits

are justified… the government is best restricted to the former role, with some

latitude granted in cases where evidence is needed or the decision to be made

cuts across the normal lines of debate.76

In essence, Mathen’s objection underscores one of the most fundamental objections to dialogue

theory – the fact that dialogue does not – and should not – change the fact that the Court is to be

left to have the final word, while the legislature is left with the burden of proof in justifying its

compelling interest to the Court. From this view, it would appear that the dialogue remains rather

one-sided.

One issue with Mathen’s analysis is that it does not adequately address the competencies

of the Parliament under section 33, and how that section of the Charter in fact does enable it to

have the final say if so desired. In fact, one could go further to suggest that, in being constrained

by section 33 of the Charter, the Supreme Court may actually be more willing to listen to the

concerns and compelling interests raised by the legislature on an issue. Mathen is correct,

however, in the sense that this playing of cards does not necessarily constitute “dialogue,” but

rather a form of “negotiation.” One can further generalize this analysis by simply noting that

legislative responses to Court decisions do not always constitute dialogue, and that the branches

75
Mathen, Carissima. “Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on
‘Charter Dialogue Revisited.’” Osgoode Hall Law Journal. Vol. 45(1): 2007, pp. 125-146. Pg. 133.
76
Ibid 133-134.

41.
do not necessarily have to share the same position on an issue in order to come to more of a

consensus over it.

As touched upon in the introductory chapter, these considerations constitute the semantic

and functional differences that allow for “constitutional negotiation” to better apply to situations

in which “judicial dialogue” does not. The difference between the two theories is slight, yet

nonetheless important, as “constitutional negotiation” assumes that the differences in the

positions among branches will still invariably tend towards a more moderate form of review over

time, one that lends respect to both the provisions in question as well as any relevant political

considerations.

Canadian “Negotiation” in Practice

The Canadian experience with international terrorism, and its wholly new set of legal

questions, has been somewhat mixed. As Kent Roach points out, “the impulse towards rights

protection subject to justified and proportionate limits and the impulse towards more reflexive

deference and concerns about the status of non-citizens and sovereign nations are both entrenched

in [the Canadian] constitutional make-up,” and that no single direction of development between

the Court and the legislature exists.77 In this analysis, Roach focuses largely on the qualifications

examined in light of section 7 of the Charter, which states that “[e]veryone has the right to life,

liberty, and security of the person and the right not to be depraved thereof except in accordance

with the principles of fundamental justice.”78 This qualification in the latter part of the section

makes it amenable with respect to section 1, which “guarantees the rights and freedoms set out in

77
Roach, Kent. “Section 7 of the Charter and National Security: Rights Protection and Proportionality
versus Deference and Status.” Ottawa Law Review. Vol. 42(3): 2011, pp. 337- 367. Pg. 343.
78  “Constitution Acts, 1867 to 1982.” Justice Laws Website. 15 Mar. 2013. <http://laws-
lois.justice.gc.ca/eng/Const/page-15.html>. Emphasis added. Notice immediately that the “except in
accordance with the principles of fundamental justice” renders section 7 as a “qualified right,” with the
specifics in certain cases being open to negotiation between the branches.  

42.
[the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably

justified in a free and democratic society.”79 Empirically, the right in question in these terrorism

cases concerns the right of immigrants and permanent residents to appeal orders of deportation,

while the qualifications to this right limit appeals in cases where the individual constitutions a

“national security risk,” or when evidence for the deportation order is classified.

To illustrate these issues, he draws six accounts of section 7 jurisprudence, three of which

become subject to section 1 exceptions over time, and three that do not. Changes over time only

minimally explain a slight shift towards stricter judicial oversight for the sake of rights protection

– as Roach notes, such “increased rights protection often goes hand in hand with a willingness to

accept reasonable and justified limits on rights.”80 Overall, Roach suggests that international

human rights obligations “have a role to play and the gravitational force of such obligations is

considerable.”81 In examining the contrast between these cases, it will be clear that the

negotiations between section 7 rights and national security concerns only show consistency once

international rights obligations enter the arena as a third party negotiator. Thus, as this analysis

suggests, a development of theses cases does lend itself to a form of constitutional negotiation,

one that invokes a periphery party of negotiation.

To make this point clear, let us first briefly walk through the cases developed by Roach,

to the extent that they show an inherently mixed jurisprudence on terrorism. The first set of case

progressions, as he argues, have a common basis in landmark decisions made in 1985, in which

the Supreme Court established that section 7 protections were not merely limited to issues of

procedural fairness.82 This reasoning was central in BC Motor Vehicle Reference, a case that

questioned whether the conviction of drivers that were unaware of having a suspended license

79
Ibid.
80
Roach 343.
81
Ibid 343, 367.
82
Ibid 344.

43.
was constitutional.83 In ruling that such convictions were unconstitutional, the Court established

that one of the “principles of fundamental justice” in section 7 rests on the requirement that some

element of fault be present in order to allow for a conviction.84 During the ruling, as Roach

notes, the Court suggested that violations under section 7 would only be justified under section 1

in “exceptional circumstances, such as natural disasters, the outbreak of war, epidemics, and the

like.”85

In the same year, the Court had an opportunity to apply section 7 rights to the context of

national security. Operation Dismantle, a case involving a peace group’s challenge of the

government’s decision to allow the US to test cruise missiles on the northern Canadian territories,

saw the Canadian Supreme Court confronted with the question as to whether the issue was

justiciable under the Charter.86 While the government argued that powers related to foreign and

military affairs were not cognizable by the Court, the majority opinion rejected this view, arguing

that the Court has considerable latitude in evaluating when section 1 may be applied to section 7

rights.87 On this view, it seemed that the Court would not defer on questions related to foreign

and military policy.

During the time that these cases were decided, however, “reasonable limits” to section 7

rights under section 1 did not include issues related to international terrorism, as a generalized

legal classification for this form of “terrorism” did not exist at the time. Thus, when Suresh v.

Canada arrived at the Supreme Court in 2002, the judges were faced with a conflict between

precedent – particularly the latitude in evaluating foreign and military affairs established in

Operation Dismantle – and new legal classifications of “terrorism” and “security risk,” entered

83
BC Motor Vehicle Reference, 2 SCR 486 (1985), found at: “Re: B.C. Motor Vehicle Act.” Judgments of
the Supreme Court of Canada. 18 Mar. 2013. < http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-
csc/en/item/100/index.do >.
84
Ibid.
85
Roach (2011), at 344, citing: 2 SCR 486 (1985).
86
Ibid 348.
87
Ibid, citing: 1 SCR 441 (1985).

44.
into the legal culture under UN Resolution 1373.88 The case itself involved Suresh, a refugee

from Sri Lanka whose application for admission into the country was rejected, without the ability

to appeal the decision, on the grounds of being a “security risk.”89 While the Court denied his

petition, deferring to the knowledge of the executive and legislature on what constitutes a security

risk,90 it went further to address the potential of being complicit in deporting a refugee back to a

place where he may face torture. On this note, the Court added that such brutal treatment might

very well be justified in:

…exceptional circumstances… either as a consequence of the balancing process

mandated by s. 7 of the Charter or under s. 1… We may predict that it will rarely

be struck in favor of expulsion where there is a serious risk of torture. However,

as the matter is one of balance, precise prediction is elusive. The ambit of an

exceptional discretion to deport to torture, if any, must await future cases.91

Thus, in recognizing the capacity of the legislature and executive to determine the content of a

“security risk,” the Court is also implicitly recognizing its complicit violation of other Canadian

and international laws.92 The only solution available to the Court, as the excerpt suggests, is to

further negotiate the details underlying “terrorism” and “security risk” through future cases.

Such forced concessions to the other branches on part of the Court also dominate the

progression of cases from Singh to the Afghan Detainee Case.93 The unifying trend among these

cases, as Roach explains, is that in some instances, the “Canadian courts have strayed far from the

original vision of rights protections and proportionality that animated early Charter cases such as

88
“Press Release SC/7158.” United Nations. 28 Sept. 2001.
<http://www.un.org/News/Press/docs/2001/sc7158.doc.htm>.
89
Suresh v. Canada, 1 SCR 3 (2002), found at: “Suresh v. Canada.” Judgments of the Supreme Court of
Canada. 18 Mar. 2013. < http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1937/index.do>.
90
Ibid, at 33. Cited in: Roach (2011), at 345.
91
Roach (2011), at 345, citing: 1 SCR 3 (2002), at 78.
92
Ibid.
93
Ibid 348-354. Here Roach outlines the same trends in these progressions of cases. For our purposes,
however, one progression from each category is sufficient to glean his argument that the jurisprudence of
Canada has pulled in both directions on various occasions.

45.
BC Motor Vehicle Reference,” or Operation Dismantle.94 Particular to this case, the Court moved

away from its competency to adjudicate issues related to foreign and military policy when it was

later faced with the Suresh exception.

With this background in place, Roach then transitions to the second set of case

progressions, which he argues flips the trend. To illustrate this transition of interpretations, he

considers the cases Canada v. Chiarelli and Charkaoui v. Canada, among other pairings. The

foundational idea of this progression emerged in Chiarelli, a case involving a permanent resident

that faced deportation after having pleaded guilty to uttering threats to cause injury and the

possession of narcotics. In this case, the Court ruled that the government has a considerable

latitude to decide which immigrants may enter or remain in the country, accepting the possibility

that Parliament may make a “legitimate, non-arbitrary choice” to deny an immigrant access or

deport a permanent resident, given that permanent residency represented a contractual

relationship with the state that may be revoked due to illicit conduct.95 Further, the Supreme

Court upheld the use of secret evidence on part of the government as adequate rationale for

allowing the deportation, even though such evidence could not be presented to the petitioner or

the Court. Abstracting from this notion, the Court underscored the importance of secrecy, even

over concerns of rights and proportionality, citing potential dangers mentioned in previous

jurisprudence on Cold War secrecy.96 In a sense, the Court is deferring to the political branches

in the sense that it would do ten years later in Suresh, even though it had set a contradictory

precedent seven years earlier in BC Motor Vehicle Reference. Particularly curious is the fact that

the legalized category of “terrorism,” and its associated legal culture, still did not exist when the

Court was reviewing Chiarelli, and thus the same legal argument for what would become a

prequel to the Suresh exception was not open to the Court.

94
Ibid 354.
95
Ibid 357-358. Citing: 1 SCR 711(1992), at 733-734.
96
Ibid 358.

46.
 Thus, in many ways, Roach notes how the following case, Charkaoui v. Canada,

“represented something of a return to the BC Motor Vehicle Reference approach of allowing other

legal rights in the Charter to inform the content of section 7 rights.”97 In this case, Charkaoui, a

resident that was arrested based on a security certificate that contained classified information, was

set to be deported without the ability to fully review and challenge the charges against him.98

Faced with these charges, the Court ruled that using classified evidence as a means of

deportation, without an alternate avenue of reviewing or challenging the case, was

unconstitutional.99 Specifically, the Court held that security concerns “cannot be permitted to

erode the essence of section 7. The principles of fundamental justice cannot be reduced to the

point where they cease to provide the protection of due process that lies at the heart of s. 7 of the

Charter.”100 Thus, the Court returned to holding the two concerns – national security and basic

rights of due process – in light of one another, rather then allowing the former to erode the latter.

After outlining this progression of cases, Roach, the proponent of the “dialogue theory”

posited above, ensures to stop and analyze the ways that the Court enabled dialogue by engaging

in proportionality analysis in Charkaoui in order to determine a remedy:

The Court facilitated dialogue between the Court and Parliament in Charkaoui I

by suspending the declaration of invalidity for a year. Parliament responded by

enacting a special advocate scheme that has subsequently been upheld as an

adequate substitute for full disclosure. Under this scheme, special advocates

have assisted in subsequent decisions that have revealed flaws in the secret

evidence, including those relating to the reliability of human sources and the use

of evidence obtained through torture.101

97
Ibid 359.
98
Charkaoui v. Canada. 1 SCR 350 (2007), at 10-11.
99
Roach (2011), at 358.
100
Ibid 359, citing: 1 SCR 350 (2007), at 27.
101
Ibid, citing: Harkat v. Canada. 2012 FCA 122.

47.
While this undoubtedly does represent an interaction between the branches with a dialogic nature,

how does one square the fact that the same apparent “dialogue” over section 7 qualifications lead

towards a realization as extreme as the Suresh exception, particularly given that it violates other

sections of the Charter as well as international law?102

In attempting to answer this question, Roach successfully identifies how international

influences, in the aftermath of Suresh, cautioned Canada of “the absolute nature of its obligations

not to be complicit in torture,” a complacency that the Suresh exception seemed to imply.103

Indeed, many legislative moves on part of the Canadian Parliament since 9/11 have been focused

on externally denouncing torture, despite its narrowly legal stature in Suresh. The government

has since “created commissions of inquiry into the conduct of Canadian officials in relation to

Canadians who were tortured abroad,” and adopted amendments to the Immigration and Refugee

Protection Act that exclude evidence obtained by cruel and degrading treatment and torture.104

As Roach concludes from these steps taken,

The best argument for rights protection and proportionality to prevail over

deference and status concerns may be in those cases where the rights claim is

supported by Canada’s international human rights commitments. In other words,

the courts may be reluctant to ever give effect to the Suresh exception because…

such an exception would violate international human rights law.”105

In essence, Roach attempts to square the circle – the simultaneous presence of two forms of case

progression that pull in either direction – by inviting the international community, complete with

its human rights obligations, as a third party of dialogue.106 In this sense, he implicitly argues that

102
See supra, note 90.
103
Ibid 346, citing: Saadi v. Italy, ECHR 179 (2008), 49 EHRR 30 (2009).
104
Ibid.
105
Ibid 367.
106
Roach uses this approach as a means to potentially explain the other case progressions in that set, those
that went from rights protection to deference, as well. See: Ibid 367.

48.
dialogue still occurs in both cases, and the Suresh exception may represent “a bump in the road

towards greater awareness and condemnation of the practice.”107

In elaborating the same semantic objection as had been done above, it seems clear that

“constitutional negotiation” seems much more appropriate to describe this overall phenomenon

than “dialogue.” When responding to the cautions of the international community, the Canadian

Parliament never directly addressed the dangerous exception posed by Suresh. Indeed, when

writing, Roach concedes that the potential of realizing such a case still “remains as a type of

threat.”108 Thus, while some form of dialogue may have been happening, it definitely was not in

the spirit of “dialogic judicial review.” Rather, it more appears that, having reached a snag in the

dialogic process, the branches became more interested in negotiating with the international

community, enacting laws and establishing standards of evidence that put prohibitive restraints on

a potentiality – the Suresh exception – that had been realized in constitutional law.

“Constitutional negotiation,” while functionally similar to “dialogic review,” allows for these

cases where third party intervention may be required to navigate a problem in the way that inter-

branch dialogue cannot. As we will see in the Italian case study, “constitutional negotiation”

does bear a unique practicality in applying to these scenarios, while remaining generalizable

enough to apply to cases where dialogic relationships within the branches do function properly.

The “New Deference” of the US Supreme Court

This particular requirement of having a constitutional provision that remains open to

interpretation, rather than simply a general assumption of different branch competencies, seems to

provide helpful starting point for the examination of the experience of judicial negotiation on part

of the US Supreme Court. Indeed, as will be shown below, the “new deference” of the Supreme

107
Ibid 346.
108
Ibid.

49.
Court better represents a negotiative relationship between the political branches, as it recognizes

the different capacities of the political branches in interpreting the “right” of habeas corpus

versus filling in the details regarding the remedy for a violation of that right. Meanwhile, in

simply representing deference outright, the old form of judicial deference afforded to the

executive actually closed negotiations on the question of rights, as it handed the executive free

reign to cut corners on an undefined set of constitutional rights.

Old Versus New Judicial Deference

As Kim Lane Scheppele, who outlines the history of judicial deference in US

jurisprudence, highlights, much of the confusion surrounding emergency powers lies in the fact

that all three branches have never quite elaborated the extent and means by which the executive

may wield unilateral power in response to a crisis. In response to this lack of elaboration, the

Court has been highly deferential to the executive throughout the majority of emergencies within

American history. The opinion of the Ohio trial court in Ex parte Vallandigham, a Civil War

case involving the habeas rights of a congressman charged in a military tribunal due to having

expressed sympathetic concerns for the Confederate States, provides a remarkable account of this

“old judicial deference:”

It is perhaps not easy to define what acts are properly within this designation

[military necessity], but they must undoubtedly be limited to such as are

necessary to the protection and preservation of the government and the

constitution, which the president has sworn to support and defend. And in

deciding what he may rightfully do under this power where there is no express

legislative declaration, the president is guided solely by his own judgment and

50.
 discretion, and is only amenable for an abuse of his authority by impeachment,

prosecuted according to the requirements of the constitution.109

The Supreme Court opinion on the matter, Ex parte Milligan, which was handed down after the

war, moderated the judgment of the trial court, yet nonetheless acquiesced in the matter of

interest, the ability of the President to suspend the writ of habeas corpus in response to times of

crisis.110

Cases brought before the Court during WWII, as Scheppele notes, saw a codification of

“old judicial deference” at the level of the Supreme Court. Ex parte Quirin is famous in this

regard. This case involved the military trials of eight Germans saboteurs who arrived in the US

during WWII. After one of the eight Germans turned himself into the FBI and foiled the others’

plot, Franklin D. Roosevelt opted to use the war as an means to hastily set up a military tribunal

under an Executive Order to try the saboteurs. Such a move was done in part to secure a

conviction with the potential for a death sentence, despite a meager amount of evidence of actual

criminal activity, as the saboteurs were apprehended while in civilian clothing.111 The Executive

Order also avoided public criticism for not having been knowledgeable of the conspiracy.112 The

saboteurs petitioned the Supreme Court in the form of a habeas petition, not recognizing and

challenging the authority of the military tribunal, during which the trial was already in

processes.113

In addressing the case, the Supreme Court first issued a per curiam opinion that allowed

the military tribunal to go forward. By the time the Court was to issue a fully reasoned judgment,

all of the saboteurs were convicted, six of which were executed.114 The full opinion then was

109
Scheppele 101-102, citing: Ex parte Vallandigham, 28 F. Cas. 874, 920 (1863).
110
Ibid 102.
111
Ibid.
112
Ibid 103, and Fisher, Louis. “Military Tribunals: The Quirin Precedent.” Congressional Research
Service, RL 31340, pp. 3-5.
113
Ibid, and Fisher 11-12.
114
Ibid, and Fisher 15-16, 28.

51.
necessarily awkward, as it was handed down too late for the petitioners to appreciate why their

habeas petitions were rejected.115 While the Court granted old deference to the President and

Congress to set up military tribunals in times of war, the Justices were unable to come to a

coherent agreement, grounded in the Constitution, as to why military tribunals were necessary to

try war crimes, particularly against individuals that could not be clearly pinned as enemy

combatants.116 Thus, deference to the other branches seemed to be the only coherent conclusion

in this case.

An even more explicit statement of old deference during WWII came with Hirabayashi v.

United States, in which the Supreme Court upheld the establishment of curfews for Japanese-

Americans residing on the West Coast.117 Specifically, the Court recognized that, on balance, the

discriminate application of curfews to certain minorities – in this case Japanese-Americans – was

acceptable in cases that the nation was at war with the country from which that group

originated.118 In this case, the Court proceeded to deliver a sweeping deferral to the political

branches in noting that,

[t]he war power of the national government is the power to wage war

successfully… It embraces every phase of the national defense, including the

protection of war materials and the members of the armed forces from injury and

the dangers which attend the rise, prosecution, and progress of war… Where, as

they did here, the conditions call for the exercise of judgment and discretion and

for the choice of means by those branches of the Government on which the

Constitution has placed the responsibility of war-making, it is not for any court to

115
Ibid, and Fisher 27-32.
116
Ibid 103-104.
117
Ibid 105.
118
Ibid.

52.
 sit in review of the wisdom of their action and substitute its judgment for

theirs.119

With such a deferential treatment of emergency powers to the political branches, the Court had

little choice but to refer to this precedent in Hirabayashi in its successor case involving Japanese-

American internment, Korematsu v. United States, in which the Court held that internment of

Japanese-Americans, despite their actual citizenship, was constitutional during the conduct of

war.120 Such a case clearly demonstrates the extent to which this deferential precedent has

dominated judicial thought through the WWII period.

In many ways, “old judicial deference” closes the door on negotiations in the sense that

the judiciary has continually written the political branches a blank check to act when an

emergency is ongoing. As Scheppele notes, “[t]he old deference cases drip from an overflowing

sense that the courts have a limited place in the constitutional order. Over and over, judges report

that they cannot possibly know what the executive knows, that they cannot decide without seeing

the security-barred information… and that they have no right to know these things in any

event.”121 In essence, the Court, in not limiting emergency powers with regard to specific rights,

closed any possibility for negotiations over which branches should employ which competencies

during the course of a crisis, and in what ways these competencies ought to be limited.

Thus, when the nature of the crisis changed, the Court found itself in a better position to

evaluate new legal understandings of “enemy combatant” and “detention” against specific

individual liberties, particularly when the Office of Legal Council took the liberty in “radically

changing the interpretation of existing law to permit an aggressive response to terrorism.”122

Such legal justifications lead to the detention of alien enemy combatants at Guantánamo, and

119
Ibid 105-106, citing: Hirabayashi v. United States, 320 U.S. (1943), at 93.
120
Ibid 106, citing: Korematsu v. United States, 323 U.S. (1944), at 217-218.
121
Ibid 108.
122
Ibid 109-110, citing the OLC interrogation memos, found at: “Index of Bush-Era OLC Memoranda
Relating to Interrogation, Detention, Rendition and/or Surveillance.” American Civil Liberties Union. 5
Mar. 2009. <http://www.aclu.org/pdfs/safefree/olcmemos_2009_0305.pdf>.

53.
ultimately lead to the claimed power to detain domestic enemy combatants as well.123 For the

latter category of individuals, petitions against detention naturally arrived at the doorstep of the

Supreme Court in the form of writs of habeas corpus.

Two of the first such cases were Hamdi v. Rumsfeld and Rumsfeld v. Padilla. Both of

these cases involved petitions of habeas corpus from individuals that were being detained in

Guantánamo Bay by the government, despite being American citizens.124 While the lower courts

retreated to old deference,125 the Supreme Court took a strangely different approach. While both

cases could have approached the Supreme Court as a question of presidential power to detain

U.S. citizens without trial – with the only difference being that Hamdi was captured by the

military in Afghanistan, while Padilla was arrested in a U.S. airport – the Court proceeded to

dismiss one case on procedural grounds while deciding Hamdi on its merits.126

While the majority evaded Padilla on procedural grounds – Padilla brought the charge to

the wrong district court in the first place – the dissent still took the opportunity to warn that “[a]t

stake in this case is nothing less than the essence of a free society. Even more important than the

method of selecting the people’s rulers and their successors is the character of the constraints

imposed on the Executive by the rule of law. Unconstrained executive detention for the purpose

of investigating and preventing subversive activity is the hallmark of the Star Chamber.”127

Meanwhile, the 5-4 majority avoided the deference question altogether.

Such a shift in deference policy pales in comparison to the decision handed down in

Hamdi. As Scheppele notes, “all of the Justices save Justice Thomas ruled against the

123
Ibid 111, citing: Woolman, Joanna. “Enemy Combatants: The Legal Origins of the Term ‘Enemy
Combatant’ Do Not Support Its Present Day Uses.” Journal of Law & Social Challenges, Vol. 7(145):
2005, pp. 154-160.
124
Ibid 111.
125
Ibid 112-115. Here, Scheppele runs through the rulings of the lower courts in both cases.
126
Ibid 115.
127
Ibid 116, citing: Padilla v. Rumsfeld, 542 U.S. (2006), at 465.

54.
government’s case for indefinite detention with unusually undeferential language.”128 Indeed, it

was in this case that Justice O’Connor, writing for the majority, made her famous claim that

“…we necessarily reject the Government’s assertion that separation of powers principles mandate

a heavily circumscribed role for the courts in such circumstances… We have long since made

clear that a state of war is not a blank check for the President when it comes to the rights of the

Nation’s citizens.”129 Such a strong stand clearly represents a departure from the old deference

policy of the Supreme Court, grounded in the rights of citizens rather than a question of branch

competencies.

However, as Scheppele is quick to add, despite the bold assertions of non-deference

handed down in the decisions, the Court never exactly defined of what these rights, those which

were due to Hamdi in some form of remedy, consisted. As Scheppele notes, the “opinion held

that Hamdi had to be notified of the factual basis of his classification and to receive an

opportunity to rebut these charges with evidence before a neutral fact-finder. But beyond these

absolutes, things were not so clear.”130 In the end, however, the Court nonetheless found that the

detention was authorized under the Authorization of the Use of Military Force (AUMF) passed by

Congress in 2001, which provided enough legislative oversight to allow the detention while the

legislative details of the habeas hearing were further defined. Thus, despite the press’s claims

that the detainee won, in reality the situation for Hamdi hardly changed at all.131 The case was

even bleaker for the case of Padilla, who, in the course of submitting another writ of certiorari

before the Court, was convicted by the government of an unrelated conspiracy charge, was denied

128
Ibid 117.
129
Ibid 117, citing: Hamdi v. Rumsfeld, 542 U.S. (2004), at 535-536.
130
Ibid 123.
131
Ibid 118-119. The press article titles are of particular interest, and illustrate the gap between the right to
habeas corpus versus the actual remedy that was denied through the AUMF.

55.
the writ, and was held in military custody for another four years before facing trial for this second

charge.132

The gap between constitutional right and remedy, which Scheppele carefully outlines

with each Guantánamo case, constitutes the defining mark of “new judicial deference.” While the

Supreme Court refuses to defer to the Executive’s claim to suspend habeas corpus rights, it also

failed to elaborate on the remedy to the fact that the petitioner in question had been illegally

detained, effectively allowing the President to maintain keep the detainees at Guantánamo for

years.133

Does this “new deference” promote a negotiative relationship between the branches in a

way that “old deference” does not? Certainly when examining the O’Conner decision, one can

see the marks of negotiation – the Court abstractly defines an absolute right, but on the condition

that the legislature uses its competencies to fill in the details that lead to a remedy. While at the

time this divide between protecting the right and deferring the remedy – that which marks “new

deference” – has been more implicit, the cases involving Guantánamo detentions of non-

nationals, in that they represented an area of law not defined at the time, were more explicit.

With regard to the detention of non-U.S. citizens, British high court judge Lord Johan Steyn

famously called Guantánamo a “legal black hole,” noting that judges should nonetheless take a

role in arbitrating these matters.134 Thus, given the need of legal elaboration and Court oversight

on potentially unilateral Executive action, an examination of these cases may reveal whether

“new deference” can be construed as more negotiative in nature. Indeed, as the three cases

examined in this context – Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush – will

show, “new deference” does afford the political branches with more room to define a balance

between constitutional values and national security.

132
Ibid 120-121.
133
Ibid 123.
134
Ibid 125-126.

56.
 As Scheppele recounts the first of these three cases, Rasul v. Bush, she stresses how the

majority “decided no actual habeas claims; it merely decided that habeas claims could be

made.”135 From a negotiative perspective, this could be seen as opening the door for the

legislature to fill in this legal gap. In a way, this was accomplished through Congress’s Detainee

Treatment Act of 2005 (DTA 2005), which actually went against the Court opinion in denying all

Guantánamo detainees the right to habeas corpus.136 Interestingly, the passage of this Act

coincided with the Hamdan v. Rumsfeld case, and thus the “majority agreed that the Court could

act despite the language of the DTA 2005, holding that the Act did not apply to cases pending at

the time the legislation was passed.”137 The language of the decision thus continued to show no

deference to the President, while not explicitly responding to DTA 2005, the original response of

Congress to the Rasul decision.138

It would be Congress that would respond with the Military Commissions Act of 2006

(MCA 2006), which, “passed in reaction to the Hamdan decision, overtly permitted the President

to make the military commissions different from the ordinary courts martial, taking away the

primary objection that the Supreme Court had had to their original structure.”139 Thus, when the

government charged him with a new crime under MCA 2006, “material support for terrorism,”

Hamdan was again thrown into a maze of trials and delays, all while remaining in detention under

conditions of solitary confinement.140 As with the cases involving US citizens detained at

Guantánamo, new deference triumphed in these instances.

135
Ibid 128.
136
Ibid 129-130.
137
Ibid 130, citing: Hamdan v. Rumsfeld, 548 U.S. (2005), at 572-584.
138
Ibid 130-132.
139
Ibid 134, citing: Elsea, Jennifer. “The Military Commissions Act of 2006: Analysis of Procedural Rules
and Comparison with Previous DOD Rules and the Uniform Code of Military Justice.” Congressional
Research Service, RL 33688, 2007. <http://www.fas.org/sgp/crs/natsec/RL33688.pdf>.
140
Ibid 135, citing: Guantanamo Pair’s Charges Dropped, BBC, June 5, 2007, <http://news.bbc.co.uk/
2/hi/americas/6720315.stm.>; and “Declaration of Andrea Prasow, Assistant Detailed Defense Counsel to
Salim Hamdan.” Military Commission, United States v. Hamdan. 1 Feb. 2008.
<http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials- project/testimonies/testimomies-of-
lawyers/prasow_hamdan_declaration.pdr.pdf.>

57.
 The Supreme Court posed a response to this changed legal culture – established by

Congress’s DTA 2005 and MCA 2006 – in Boumediene v. Bush. As Scheppele notes, the Court

was pressed to determine where exactly where the habeas rights of detainees were located in law

– “[i]f habeas rights were based in the habeas statute, then Congress could change its terms and

the Court would have to defer. If the rights inhered in the Constitution, however, then there were

limits to how fundamentally Congress could alter their parameters.”141 In this light, and arguing

against a history of the abuse of detention authority, the Court argued that habeas rights do indeed

have a constitutional character grounded in the Suspension Clause, which “must not be subject to

manipulation by those whose power it is designed to restrain.”142

Thus, in elaborating a constitutional character for habeas rights, the Court more firmly

pushed back against the legal culture developed in response to Rasul. Scheppele stresses how,

“[f[inally realizing that the detainees ‘have been denied meaningful access to a judicial forum for

a period of years’ and realizing that remanding to the court of appeals would generate further

delays, the Court went ahead and finally outlined what, at minimum, a habeas review had to

provide.”143 Yet in pointing towards a legal structure that would uphold these minimum

standards, the Court simply noted that “our opinion does not address the content of law that

governs petitioners’ detention. That is a matter yet to be determined.”144 Thus, while the Court

did indeed respond to the laws raised in Rasul, it left Congress the task of filling in the details,

particularly the evidentiary standard by which detention is permissible.145 For the purposes of

constitutional negotiation, this process does allow for more elaboration on the habeas rights of

aliens over time. Yet for the detainees, a prolonged discussion means a longer sentence, and

“new deference” remains here to stay.

141
Ibid 138.
142
Ibid 138-139, citing: Bourmediene v. Bush, 553 U.S. (2008), at 745, 766 for quotation.
143
Ibid 140, citing: 553 U.S. (2008), at 772.
144
Ibid 146, citing: 553 U.S. (2008), at 798.
145
Ibid.

58.
A Negotiative Character to “New Deference”

As suggested by the history outlined above, “new deference” does allow for some

negotiation between the branches, particularly when it comes to the Court forcing the other two

branches to develop a legal remedy that matches the constitutional nature of habeas rights. It

even took inter-branch negotiation to deduce that habeas rights are of a constitutional nature. The

Court upheld this negotiative view of developing habeas rights and remedies towards the end of

its Bourmediene decision, noting that,

Our opinion does not undermine the Executive’s powers as Commander in

Chief. On the contrary, the exercise of those powers is vindicated, not eroded,

when confirmed by the Judicial Branch. Within the Constitution’s separation-of-

powers structure, few exercises of judicial power are as legitimate or as

necessary as the responsibility to bear challenges to the authority of the

Executive to imprison a person…

Because our Nation’s past military conflicts have been of limited duration, it

has been possible to leave the outer boundaries of war powers undefined. If, as

some fear, terrorism continues to pose dangerous threats to us for years to come,

the Court might not have this luxury. This result is not inevitable, however. The

political branches, consistent with their independent obligations to interpret and

uphold the Constitution, can engage in a genuine debate about how best to

preserve constitutional values while protecting the Nation from terrorism.146

Given that this account represents, in Scheppele’s words, a “lip service to old deference…

tempered by the new deference hat has come to be the signature of the post-9/11

jurisprudence,”147 it seems clear that even the Court saw itself in an ongoing negotiation with the

146
Ibid 142, citing: 553 U.S. (2008), at 797-798.
147
Ibid 142.

59.
President and Congress over how to best ensure habeas rights are protected while maintaining

national security.

Further, this position of the Court outlines several other ways that “new deference” has a

negotiative character while “old deference” does not. First, the Court ensures to condition its role

to conflicts that surpass a “limited duration,” suggesting that negotiation may only occur when

repeated cases over time point to the emergency powers not responding to a crisis, but rather the

changed nature of a political order that requires further definition.148 Second, once the Court saw

habeas rights as applicable to alien combatants, the main question shifted from the competencies

of the Executive to the extent to which these rights must be elaborated.149 This topic of the

negotiation became even more salient after the rights in question were ruled to have a

constitutional character. Thus, it could be said that, in accord with the conjectures posed in the

introductory chapter, that, in some cases, “negotiation” focuses on a deferral to different

institutional capacities as a means of elaborating the rights in question.

While this strand of development also applies to the Guantánamo cases involving citizens

in a rather obvious sense – constitutional rights that apply to aliens also would apply to citizens –

it is worth repeating that the same trend developed separately for the habeas rights of citizens, as

indicated by the Court’s ruling in Hamdi. In leaving the legislature to define the specific process

designed to ensure habeas rights, O’Connor’s opinion rather blatantly left the next move to the

legislature, resulting in a “long, drawn-out process of litigating the specifics, during which time,

of course, the petitioner would remain in detention.”150

148
In fact, one could see how the Court views Guantánamo as the latter in saying that “there has been no
showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions…
While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne
by those who are held in custody.” See: Ibid 141, citing: 553 U.S. (2008), at 794-795.
149
Of course, some dissents along the way continued to pay lip service to old deference, not acknowledging
the right as an issue of importance.
150
Ibid 123.

60.
 Abstracting from Common Law Negotiation

With this background and prevalence of judicial negotiation established, it seems

appropriate that the scope for this phenomenon be expanded further to show how inter-branch

negotiations are common among democratic systems. Before transitioning these cases, however,

it seems prudent to condense the lessons from common law cases into a summarized set of

considerations that will also be explored in the following chapters, as a means of producing an

organized and consistent comparative analysis.

First and foremost, both “new deference” of the US Supreme Court and “judicial

dialogue” of Canadian jurisprudence follow the model outlined by constitutional negotiation. A

brief recap of each process will make this clear. In the United States cases involving habeas

rights for alien enemy combatants, the Supreme Court established in Rasul that habeas rights for

nonresidents could be claimed, but left the specific rights unelaborated. Congress responded with

the DTA 2005, stating that those rights did not exist in law. The Court then claimed that DTA

2005 does not apply to Hamdan, since the law was passed as the case was in progress. The

legislature then charged Hamdan with a crime created under a newly created law, MCA 2006,

guaranteeing that he remained in detention. As a result, the Court responded in Bourmediene

decision with the ruling that habeas rights had a constitutional character, meaning that laws could

deprive individuals of these rights. Yet the Court also left the legislature with the final word in

designing a procedure for the realization of habeas rights, effectively allowing them to detain

suspects for longer while such a procedure is codified.

Meanwhile, in Canadian jurisprudence, BC Motor Vehicle Reference circumscribed

violations to section 7 to situations where fault could be attributed, except in cases of emergencies

and crises. That same year, in Operation Dismantle, the Court exerted a competency to judge

cases involving foreign aand military affairs against section 7 of the Charter. After 9/11,

however, once the legal culture surrounding terrorism had been elaborated, due in large part by

61.
UN Resolution 1373, the Court deferred to the competency of the government to deport

individual “security risks” in Suresh, a ruling that meant that in narrow cases the Canadian

government can deport individuals to home countries that conduct torture, implicitly stating a

narrow complicity with torture. The international community then emerged as a third party,

reminding Canada of its human rights obligations. In response, the Parliament created

commissions of inquiry against torture and amend existing law to exclude evidence obtained by

harsh means in order to communicate to the international community that the Court will never

have to resort to the Suresh exception, despite its continued existence.151

In both cases, the contending parties go back and forth in order to negotiate the specifics

of a certain right and its associated procedural remedy. Further, the two jurisprudences gradually

arrive at a moderate version of both extremes, leaving both branches in a “win some, lose some”

position. In the US case, the Courts won the ability to claim habeas as a constitutional right,

while the legislature won the ability to design a procedure for habeas trials over time, effectively

keeping the suspect in detention. In the Canadian case, the government retained a large margin of

discretion over whether to deport a permanent resident or deny an immigrant that constituted a

“security risk,” while the Court was assured in front of the international community that it would

not be forced into invoking the Suresh exception.

The two cases do differ in an important sense, one that distinguishes “constitutional

negotiation” from “judicial dialogue.” In the Canadian case, the international community took a

prominent role in bringing some consistency to an otherwise mixed jurisprudence over

international terrorism. In reminding Canada of its international rights commitments, the

community took an active part in becoming a third party in negotiations, at a point when the

government had been given deference and the Court was unsure as to whether the Suresh

exception would become a reality. In pressing the government to demonstrate a commitment

151
The easier argument, of course, is made on the other set of cases, but I present BC Motor Vehicle
Reference, Operation Dismantle, and Suresh to introduce the usefulness of third parties in negotiations.

62.
against torture, the international community in a sense forced the government to moderate the

extent to which it would make the decision to deport permanent residents and immigrants,

functionally giving back some of the deference originally granted by the Court. Importantly, this

case shows how third-party negotiations may enter the picture, where traditional negotiations

between the branches had failed, restoring a balance in the separation of powers over an issue.

As will become clear in the next chapter, third-party negotiations represent an important and

generalizable part of this theory of “constitutional negotiation” that allows it to apply to situations

to which “dialogue” does not.

63.
 Third Party Negotiation – La Corte Costituzionale

“The principle of equal treatment before the courts stands at the

origin of the formation of a state governed by the rule of law.”

- La Corte Costituzionale, 24/2004

“Lengthy proceedings and the SoL (statute of limitations) are highly controversial
issues in Italy. The analysis found that the current regime shows serious
weaknesses. With one in 10 criminal proceedings being dismissed due to SoL…
the current SoL regime constitutes a significant reason for impunity.”

- Transparency International, 2010 Report

On October 26, 2012, the Corte Tribunale di Milano found Silvio Berlusconi, the former

Prime Minister of Italy, guilty of tax fraud, delivering a sentence that barred him from office and

demanded jail time. At the time, newspapers lauded the court’s ruling, noting that it was one of

the first convictions secured against the many allegations of illicit business activities held against

the former Prime Minister.152 Accusations against the former Prime Minister date as far back as

the early 1990s, and include charges such as tax fraud, bribery, and child prostitution.

While on the surface this sentence may represent a step towards holding Berlusconi

accountable for his actions, on the ground it appears that the Prime Minister may not actually

serve prison time, despite the highly publicized conviction. Indeed, as the New York Times

notes, “It is unlikely that he will ever serve jail time. Even if a definitive ruling were reached

before the statute of limitations in the case runs out next year, Mr. Berlusconi would enjoy

immunity as long as he remained in the Parliament.”153 Indeed, to date, the process of appeal is

152
For example, see the headlines posted that very day by the BBC, “Silvio Berlusconi sentenced for tax
fraud,” and the New York Times, “Berlusconi is Found Guilty of Tax Fraud.”
153
Donadio, Rachel. “Berlusconi is Found Guilty of Tax Fraud.” The New York Times, 26 October 2012.
<http://www.nytimes.com/2012/10/27/world/europe/berlusconi-convicted-and-sentenced-in-tax-
fraud.html>.

64.
still underway, and Berlusconi has yet to see the inside of a cell, despite having stepped down

from office.

In a way, such a gap between the law and reality comes as one way to characterize the

Berlusconi regime as a whole. The Economist published a scathing and controversial article that

touched upon the extent to which the Prime Minister has not been subject to the law. Despite

numerous allegations, ranging from tax fraud to sex scandals to televised defamation of political

opponents, only “[s]everal cases have seen convictions, only for them to be set aside because the

convoluted proceedings led to trials being timed out by a statute of limitations—at least twice

because Mr. Berlusconi himself changed the law.”154 Given that these actions represent a

formidable threat to the separation of powers, one must question the extent to which other

branches have pushed back against Berlusconi’s perceived lack of accountability.

In keeping with the theme of negotiative judicial review, this chapter will examine the

responses of the Italian Constitutional Court to Berlusconi’s repeated attempts to assert a

monopoly on parliamentary immunity. As the Court has stated on occasion, laws governing the

immunity of political branches have constitutional status.155 Thus, it seems fitting that the

judgments of the Constitutional Court, as well as legislative responses, serve as the scope of our

analysis, as this Court has the competency to strike down constitutional challenges on immunity

laws brought forth by lower courts, while the legislature has the ability to then respond and

implement these decisions.

Indeed, when examining the jurisprudence of the Court on this issue, it is clear that the

Court has actively ruled against attempts by Berlusconi to avoid accountability under the law. In

fact, as the progression of the Court jurisprudence will show, the Court has been successively

narrowing in on the mechanisms that the Prime Minister has been using to avoid criminal

154
“The man who screwed an entire country.” The Economist, 9 June 2011
<http://www.economist.com/node/18805327>.
155
See, for example: Sentenza N. 262 Anno 2009. 262/2009. C Cost. 2009.

65.
accountability for his extralegal actions. As time has progressed, the decisions of the Court have

moved beyond the questions of immunity law into the realms of legitimate impediment and

parliamentary function. In this light, it would appear that the Constitutional Court has

consistently acted against Berlusconi in his attempts to remain outside the law.

Despite this conclusion, however, one must still question the continued impunity of the

Prime Minister. If the Constitutional Court has repeatedly struck down any laws or actions

oriented towards Berlusconi’s immunity, how has it been that he has yet to face a certain

sentence? Of course one option, as Berlusconi and La Forza argue, is that the political opposition

has orchestrated the decisions issued by the courts in order to hurt his reputation in the public

eye.156 On the other side, could this lack of results simply be due to a gap between the law as

announced and the law as practiced?

This dilemma will necessitate an examination of the causal mechanisms behind the

inability to secure a conviction. Specifically, I will examine three different aspects of the Italian

legal system that are involved in interpreting the immunity of Berlusconi: (i) diritto vivente

(“living law”) as a practice exercised by the Constitutional Court that limits the interpretation of

the Court to the specific challenged raised by lower court judges; (ii) the Italian legal system as

based in civil law with a Kelsenian Constitutional Court that requires the Court to rule on every

constitutional matter brought to it; and (iii) the unique statute of limitations laws detailed in the

Italian Penal Code, and how it has been amended over time. When all three of these elements are

considered, it becomes clear that a gap in the law allows someone with legislative power to

effectively avoid the sentences of the courts, particularly in a manner that allows the Italian

statute of limitations to take effect, to which the Constitutional Court chooses to subject itself.

156
In fact, on the day of the October 26th decision, Berlusconi reportedly called in to one of his privately-
owned news stations in order to downplay the sentence as a political move, saying, “Ritengo che questa sia
una sentenza politica, come la maggior parte dei processi che mi riguardano… Si sono tenute 2666 udienze
in questi anni su di me” (I think that this is a political decision, as are most of the cases that concern me…
In all there are 2666 hearings that have been held in recent years in which I am involved). See: “E una
sentenza politica.” Corriere TV. 26 Oct. 2012. Web. 14 Feb. 2013.

66.
 Taken together – the judgments of the Constitutional Court and the gap in the Italian

legal structure – we will see that negotiations are not limited to that which occurs between the

political branches. On one hand, the Italian case is not simply a gap between the law in the books

and the law in practice – the rulings issued by the Constitutional Court do come into full effect

when they strike an immunity law unconstitutional. The Court has also worked to negotiate with

the legislature over the concept of a legitimate impediment to appearing in trials. Yet at the same

time, the structure of the Italian legal system lends itself to rendering the point moot when a

decision is finally reached and before a conviction is handed down. As a result, the facts on the

ground – Berlusconi’s alleged crimes brought before the court – see little change, despite the

Court’s continued rulings against the norms protecting them. This reality, observable from the

back-and-forth interactions between the legislature and the Court and their various competencies,

has motivated action from interests groups outside the political branches, such as NGOs and

opposing political parties, that have sought to correct this structural gap within Italian law so that

Berlusconi may be held accountable for his actions.

Italian Jurisprudence on Berlusconi’s Immunity

As the picture above illustrates, the Berlusconi regime has been highly known for

ducking the law, using both legal means as well as overt delay tactics. Less known, however, is

the fact that the Italian Constitutional Court, to the extent possible, has been highly responsive to

these attempts by Berlusconi to avoid accountability. In 2004 and 2009, the Court struck down

two attempts by Berlusconi’s center-right coalition to pass blanket immunity laws for the top

officials in the Italian government. Two years later, in 2011, the Court then struck an attempt by

Berlusconi to streamline a process of delaying trials via a “legitimate impediment.” Such

decisions show that the judicial system in Italy has been successful in making sure Berlusconi

does not have a blank check to act as he wills. As a more detailed review of the jurisprudence of

67.
the Italian Constitutional Court will show, the Court has been successful in narrowing in on and

striking down the mechanisms used by Berlusconi to maintain impunity.

As implied above, the first set of Constitutional Court cases focus on interpretations of

general immunity laws. The first of the landmark decisions was handed down on the 13th of

January 2004. This case emerged from a June 2003 criminal proceeding against Berlusconi in the

Tribunale di Milano, in which Berlusconi and Cesare Previti were charged with bribing and

corrupting judges in previous “not guilty” rulings stemming as far back as the 1990s.157 In the

lowest court proceedings, Berlusconi cited the Law of 20 June 2003, n. 140 – also known as the

Lodo Schifani – which was argued as “provisions for the implementation of Art. 68 of the

Constitution as well as in the field of criminal cases against senior offices of State.”158 The law

itself, passed by Berlusconi’s coalition soon after the start of the lower court proceedings,

immediately prevented the top five individuals in the Italian government – il Presidente della

Repubblica, il Presidente del Senato, il Presidente della Camera dei Deputati, il Presidente del

Consiglio dei Ministri, il Presidente della Corte Costituzionale – from being subject to criminal

proceedings in progress at any stage, state, or for any offense relating to acts committed prior to

the assumption of the office.159 Since the implementation of this law necessarily meant that the

trial was suspended so long as Berlusconi was in office, the only recourse for the Tribunale di

Milano was to attack the constitutionality of the law by submitting a challenge to the

Constitutional Court.

In the submitted challenge, the lower court judge argued that the Lodo Schifani was

unconstitutional in three ways, submitting three connected constitutional challenges. The judge

held that it violated Articles 3, 101, 112, of the Constitution by obstructing the obligations of the

157
For an account of the entire process, see: Gomez, Peter, and Marco Travaglio. E Continuavano a
Chiamarlo Impunità. Rome: Editori Riuniti, 2007. While the account does have a clear slant, it
nonetheless reviews the trials and alleged corruption in considerable detail.
158
Sentenza di 13-20 Gennaio 2004. 24/2004. C Cost. 2004.
159
“Legge 20 giugno 2003, n. 140.” Gazzetta Ufficiale n. 142 del 21 Giugno 2003.

68.
public prosecutor to institute criminal proceedings with equality under the law; Articles 3, 68, 90,

and 96 in that it represented an inadequate implementation of parliamentary immunity that

violated equality under the law; and Articles 24, 111, and 117 in the sense that the law creates a

severe and non-proportional impediment to the exercise of judicial functions, violating the

European Convention on Human Rights.160 In response to these claims, Berlusconi demanded

that all three challenges be declared unfounded, as the Lodo Schifani represents a suitable

implementation of Articles 90 and 96 of the Constitution, which recognize the that the heads of

State are only subject to accountability for crimes when authorized by the Senate or the Chamber

of Deputies, in conformity with norms of constitutional law.161 In considering the “norms of

constitutional law,” the counsel for Berlusconi also cited Articles 116 and 132, which provide

different forms of protection for other provinces due to political concerns. Drawing a parallel to

parliamentary immunity, Berlusconi held that political concerns in the functions of parliamentary

office necessitate a law that implements the norms contained in Articles 90 and 96 and represent a

proportional response to the concerns raised by Article 3 of the Constitution.162

The decision handed down by the Constitutional Court accepted in part the constitutional

challenge from the lower court, and tabled another part for later consideration. In considering the

merits of the claim that the Lodo Schifani violated Article 3 of the Constitution, the Court

considered the effects of the law insofar as it was “automatic” and applied to an “indefinite

period.”163 In the former sense, the Court noted that the scope of the law, which suspends

160
24/2004. C Cost. 2004. For an English version of the Italian Constitution, see the copy provided on the
Italian Senate’s website: <http://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf>.
The main Articles relevant to this case – Articles 3, 90, and 96 – are as follows: Art. 3 states that “all
citizens have equal social dignity and are equal before the law;” Art. 90 states that “the President of the
Republic is not responsible or the actions performed in the exercise of presidential duties, except in the case
of high treason or violation of the Constitution;” while Art. 96 states that “The President of the Council of
Ministers and the Ministers, even if they resign from office, are subject to normal justice for crimes
committed in the exercise of their duties, provided authorisation is given by the Senate of the Republic or
the Chamber of Deputies, in accordance with the norms established by Constitutional Law.”
161
Ibid.
162
Ibid.
163
Ibid.

69.
proceedings for all conceivable crimes committed, and thus steps outside the constitutional

prerogatives outlined by Articles 90 and 96 of the Constitution. The Court did, however, stress

that Article 51 of the Constitution does permit public officials the time to complete their duties,

suggesting the scope of a law that would be in conformity with Articles 90 and 96.164 In further

considering the “automatic” nature of the law, the Court moved outside the scope of the original

challenge, a move rarely taken by the Constitutional Court in its jurisprudence.165 The Court, in a

somewhat paradoxical interpretation, noted that the automatic nature of the immunity results in a

denial of various rights of the accused, including a right to defense (Articles 24 of the

Constitution) and a right of the transferal of a case to civil courts (Article 75, para. 3 of the Penal

Code).166 These violations related to the right to a defense effectively enabled the Court to

conclude that the Lodo Schifani had indeed violated Article 3 of the Constitution. Further, the

indefinite nature of the immunity, along with the possibility of subsequent suspensions of trials

later on, violated the constitutional right to an effective judicial process (Article 111, para. 2 of

the Constitution).167 In the final ruling, the Court declared the law unconstitutional on these

grounds.

Despite the decision, and the subsequent repeal of the Lodo Schifani, Berlusconi came

out of the process unscathed. Due to Berlusconi having repeatedly complained about an inability

to attend hearings due to his political commitments, the Tribunale di Milano had already decided

to split the trial so that he may be tried separately from the alleged collaborator Cesare Previti,

164
Ibid.
165
As will be discussed below when considering mechanisms causing impunity, the Italian Court practices
the interpretation of “living law,” and accordingly restricts itself to interpreting and ruling on the scope of
the constitutional challenge. See: Groppi, Tania. “The Italian Constitutional Court: Towards a ‘Multilevel
System of Constitutional Review?” Constitutional Courts: A Comparative Study. Ed. Andrew Harding and
Peter Leyland. London: Willy, Simmonds, and Hill, 2009. Pp. 125-147.
166
24/2004. C Cost. 2004
167
Ibid.

70.
who was found guilty.168 On Berlusconi’s end of the trial, twelve years of appeals and delay

would occur before the Prime Minister was fully acquitted by the Court of Appeals of Milan on

April 27, 2007.169

While having been found innocent on the merits in this instance, the Lodo Schifani case

set the stage for the repeated encounters between the Constitutional Court and Berlusconi. In the

August of 2008, Berlusconi’s party passed Law No. 124 of 23 July 2008, also called the Lodo

Alfano, which was substantially similar to the Lodo Schifani. According to the first section of the

statute,

…any criminal proceedings against individuals which occupy the offices of

President of the Republic, President of the Senate of the Republic, President of

the Chamber of Deputies and President of the Council of Ministers shall be

suspended from the time when the office or function is taken up until the end of

the term in office. The suspension shall also apply to criminal proceedings for

conduct prior to taking up the office or function.170

In most respects, the Lodo Alfano was identical to its predecessor. One important difference was

that section two of the new law allowed for the accused to waive this right and continue trial.

While not explicit, one can assume that this provision comes as a direct response to the ruling of

the Constitutional Court in the 24/2004 judgment. With a right to waive the protection, the

accused now has the potential to realize the right to defense and the right to an effective judicial

168
Gomez and Travaglio, 405-406. For coverage on the separation of the trials, see also: Arie, Sophie.
“Berlusconi Trial Outcome Delayed for Years by Court.” The Guardian. 17 May 2003, Web, 16 Feb.
2013. <http://www.guardian.co.uk/media/2003/may/17/citynews.silvioberlusconi>.
169
Gomez and Travaglio, 408-410.
170
Gazetta Ufficiale n. 173 del 25 Luglio, 2008. Also cited in English in: Eliantonio, Mariolina, and
Sascha Hardt. “Thou Shalt be Saved (from Trial)? The Ruling of the Italian Constitutional Court on
Berlusconi’s Immunity Law in a Comparative Perspective.” European Constitutional Law Review. Vol. 7
(2011): pp. 17-39. Pp. 18-19. For the text of the law in Italian, see: “Gazzetta Ufficiale N. 173 del 25
Luglio 2008.” Aesinet. 2001. Web. <http://gazzette.comune.jesi.an.it/2008/173/1.htm>.

71.
procedure. Thus, the law mitigated many of the concerns expressed by the Constitutional Court

in its previous interpretation of parliamentary immunity.

Quite naturally, the law soon found itself subject to interpretation by the Constitutional

Court. This referral to the Court came simultaneously from two lower courts, the Tribunale di

Milano and the Tribunale di Roma, both of which were trials involving tax fraud and bribery.171

One high-profile case, which had already seen attempts to delay up to this point, involved

allegations that Berlusconi had paid David Mills, a British lawyer, $600,000 to withhold

incriminating evidence of business dealings during a 1997 trial.172 When the Lodo Alfano came

into effect, both trials were suspended and, as before, the two lower courts had only one option –

to refer the matter to the Constitutional Court.

In bringing the constitutional challenges to the Court, the tribunals brought forth two

different arguments. According to the Tribunale di Roma, the Lodo Alfano, in that it suspends

proceedings at all stages of the process, hampers their preliminary investigations, and thus

represents a violation of Articles 3, 111, 112, and 138 of the Constitution.173 The Court quickly

found this challenge unfounded, based on the fact that the investigations of the Tribunale di Roma

were preliminary in nature, and thus were interpreted to not be subject to the Lodo Alfano at that

point.174 Turning to the challenge raised by the Tribunale di Milano, the Court focused on the

challenges focused on Articles 3 and 138 of the Constitution. In these questions, the Court

reduced the constitutional challenge to two propositions: (i) laws referring to constitutional

organs necessarily have constitutional status, and thus must be created by constitutional

171
262/2009. C Cost. 2009.
172
Reuters. “Italy: Berlusconi Trial to Proceed.” New York Times. 21 June 2008. Web. 16 Feb. 2013.
<http://www.nytimes.com/2008/06/21/world/europe/21briefs-BERLUSCONITR_BRF.html>.
173
262/2009. C Cost. 2009.
174
Ibid. In rejecting this challenge, the Court found “that the interpretation of the referring judge contrasts
with the literal wording of the provision and leads to results with contrast with the constitutional principle
of reasonableness. It follows from this that the questions raised… are inadmissible due to a lack of
relevance, because the referring judge need not apply the provision, the constitutionality of which is
doubted.”

72.
processes, “since they create exceptions from the principle of equality;” and (ii) the contested law

provides a privilege aimed towards the functioning of constitutional organs, not the regular

process of the criminal trial.175

In deciding the case, the Constitutional Court held that both of these arguments were

correct. Citing logic from the Lodo Schifani case, the Court made the following determination:

… “the principle of equal treatment before the courts stands at the origin of the

formation of a state governed by the rule of law” (judgment No. 24 of 2004)…

the institutions providing protection mentioned do not only necessarily imply an

exception to the said principle, but are also aimed at striking a delicate yet

essential balance between the different branches of state, since they may have an

impact on the political functioning of the various organs. This overall

institutional architecture, inspired by principles of the separation of powers and

their equilibrium, means that the legislation governing the privileges contained in

the text of the Constitution must be understood as a specific legislative system,

which is the fruit of a particular balancing and structuring of constitutional

interests; and Parliament is not permitted to change this system either in peius or

in melius through ordinary legislation.176

Following this interpretation, the Court decided that a law relating to parliamentary immunity,

unless they comes as a strict implementation of current constitutional articles, must be enacted via

the amendment process outlined in Article 138.177 Further, the Court held that since the Lodo

175
Ibid.
176
Ibid. By this point, as Eliantonio and Hardt note, the Court had already responded to specific objections
to this interpretation, including examples where ordinary law had in the past granted privileges. One
salient example is the objection that the Court had not interpreted the challenge in this matter when
deciding on the Lodo Schifani, implying that it was in fact permissible to enact immunity through ordinary
legislation. The Court held that the ruling did not address that question due to the point being moot through
the Lodo Schifani having already been declared unconstitutional; the fact that the issue did not come up
does not imply its constitutional permissibility. See Eliantoni and Hardt, ftn. 9.
177
262/2009. C Cost. 2009.

73.
Alfano was not enacted as a constitutional amendment, it violated Article 3 by legislating an

asymmetrical immunity from trials that violates the principle of equality. In violating these two

constitutional articles, the Court handily struck down the Lodo Alfano.

Despite having been denied immunity under an ordinary law for a second time,

Berlusconi nonetheless remained immune from conviction. The Guardian provides a detailed

account of the events that transpired following the Court’s judgment. After the Lodo Alfano was

declared unconstitutional, the trial resumed. Yet the prosecution and defense could not agree on

when the alleged bribes would have taken place, causing further delays in a trial that had already

been shelved due to the Lodo Alfano. On February 25th, 2012, the judge ruled that the statute of

limitations had indeed passed, forcing an acquittal for the Prime Minister.178

Not all was for naught, however. In its judgment on the Lodo Alfano case, the

Constitutional Court put forth a significant interpretation that severely limited the maneuvering

space for Berlusconi. By deeming that all immunity laws necessarily have a constitutional

character, the Court effectively prevented the Parliament from passing immunity laws as a means

to delay trials.179 After this ruling, the character of the negotiations between Berlusconi and the

Constitutional Court changed. As Berlusconi began to focus more on means of delay rather than

securing parliamentary immunity, the Constitutional Court started to interpret the limits of

immunity with regard to this changed strategy of Berlusconi’s.

The mechanism for this shift was the invention of the “legitimate impediment.” As

promulgated in Law No. 51 of 7 April 2010, also passed by Berlusconi’s coalition, the legitimate

impediment law enables the Prime Minister to delay appearance in Court for up to six months at a

178
Kington, Tom. “Silvio Berlusconi Case Thrown Out of Court.” The Guardian. 25 Feb. 2012. Web. 17
Feb. 2013. <http://www.guardian.co.uk/world/2012/feb/25/silvio-berlusconi-bribery-case-court>.
179
Admittedly, the Italian Parliament still could enact an immunity law, since the Italian legal system
follows civil law, and court rulings do not have a binding character. However, by readily establishing a
logic that handily rules any such laws unconstitutional, the Constitutional Court expedited the process for
striking down any future laws of a similar nature should they be enacted, thereby minimizing the impact of
any such delay.

74.
time.180 The law, as the counsel for Berlusconi argued, represented a supplement to Article 420

of the Italian Code of Criminal Procedure, aimed at recognizing the existence of “situations in

which the conduct of governmental activity makes it absolutely impossible for the President of

the Council of Ministers or for ministers to appear in court, since it would preclude ‘the conduct

of institutional activities not amenable to delegation.’”181

When the law was raised as a constitutional challenge, the Tribunale di Milano, in the

midst of several Berlusconi trials involving tax fraud and underage prostitution that were facing

delay, argued that “the definition of a legitimate impediment contained in the contested

legislation is so broad and generic so to amount to an ‘absolute presumption of an impediment,’

regarded as a situation associated not with a ‘contingent fact’ but with a ‘permanent status,’ with

the result preclusion of the court’s ability to ascertain the ‘actual existence’ of the

impediment.”182 Put another way, since the courts had no role in evaluating whether or not an

actual impediment to appearing in trial exists, the Tribunale di Milano argued that the legitimate

impediment law, as constructed, has similar enough effects to the previous immunity laws so as

to be in violation of Article 138 of the Constitution. Other divisions of the Tribunale di Milano

asserted that such effects also put the law in violation of Article 3 of the Constitution, in that it

grants a favorable prerogative to the holders of government office via ordinary legislation.183

In deciding on this challenge, the Constitutional Court split the difference, yet ultimately

declared substantial parts of the contested law unconstitutional. On one hand, the Court agreed

that, in some cases, it may be necessary to balance the essential duties of State offices with the

need for an effective trial, “therefore striking a ‘reasonable balance between the dual

180
Gazzetta Ufficiale N. 51 del 7 Aprile 2010. For the text of the law in Italian, see: “Gazzetta Ufficiale N.
81 del 8 Aprile 2010.” Aesinet. 2010. Web. <http://gazzette.comune.jesi.an.it/2010/81/1.htm>.
181
23/2011. C Cost. 2011.
182
Ibid.
183
Ibid.

75.
requirements… of an expedited trial and the functional integrity of Parliament.’”184 However,

when evaluating the fact that the law establishes a blanket impediment, the Court enumerated a

substantial role in the courts over the legislature in determining the existence of an actual

impediment:

…it is for the court to assess on the facts not only the actual existence of the

impediment but also its absolute and current nature. With reference to the

situation under examination, this implies in particular the power of the court to

assess, on a case by case basis, whether the specific commitment averred by the

President of the Council of Ministers actually gives rise to an absolute inability

(including in the light of the necessary balancing operation against the

constitutionally significant interest in conducting the trial) to appear in the

proceedings…185

Since the law, as stated, did not grant the courts this ability to review the existence of an

impediment, the Court handily declared Articles 1(3) and 1(4) of the contested law to be in

violation of Article 138 of the Constitution.

The transition from immunity laws to legitimate impediments is significant, as it opened

the door for the Constitutional Court to assert authority of the courts to determine whether or not

parliamentary actions and privileges had been appropriately exercised in line with parliamentary

functions, and provided the courts with much more power to respond to Berlusconi’s continued

attempts at delaying trials. It also importantly represented a mediation over the issue of

parliamentary immunity – the Court granted that legitimate impediments to appearing at court

may exist, but it would be up to the judge to determine if such an impediment actually exists.

This power become especially salient after Berlusconi stepped down as Prime Minister in

the November of 2011, meaning that he can no longer claim legitimate impediments as a means

184
Ibid, citing 263/2003.
185
Ibid.

76.
to delay his pending trials. At the time, the remaining trials focused on tax fraud and underage

prostitution. The conviction secured last October on the former charges represented a significant

step forward, particularly given the continued battles against corruption and immunity brought

before the courts. With the sentence on the latter case, a sex scandal termed the “Bunga Bunga

Scandal,” to have been due in February 2013, it appeared that Berlusconi’s reign of impunity had

reached an end.

At least, that appeared to be the case, until Berlusconi announced in December of 2012

that he plans to seek re-election.186 One cannot help but to wonder whether this election bid is

another ruse to postpone his trials. Indeed, in a controversial ruling, Berlusconi’s trial on the

“Bunga Bunga Scandal” has been postponed by the Tribunale di Milano until after the election,

due to the fact that his political campaign “constituted a legitimate impediment to his

attendance.”187 For the time being, it remains to be seen whether an enforceable conviction

remains on the table.

The Structural Gap in Italian Law

To date, Berlusconi has not seen one completed conviction, despite having reportedly

attended 2,600 hearings over the past fourteen years. How can one explain the gap between the

repeated rulings of the Constitutional Court, and the facts on the ground? The answer, I suggest,

comes from a combination of three factors within the Italian legal system that, taken together,

create a gap that is easily exploitable by someone with power in the legislature. These three

factors are as follows: (i) the unique nature of the Italian statute of limitations, which is prone to

186
Lyman, Eric. “Disgraced Ex-PM Berlusconi Seeks Comeback in Italy.” USA Today. 11 Dec. 2012.
Web. 17 Feb. 2013. < http://www.usatoday.com/story/news/world/2012/12/10/italy-berlusconi-
monti/1759417/>.
187
Reuters. “Silvio Berlusconi Trial Postponed Until After Italian Election.” The Guardian. 11 Feb. 2013.
Web. 17 Feb. 2013. < http://www.guardian.co.uk/world/2013/feb/11/silvio-berlusconi-trial-italian-
election>.

77.
abuse by whoever can delay trials for a sufficient time period; (ii) the Italian system being a civil

law system, which does not rest on legal precedent and has a court that must respond to all

challenges, facts that do not expedite the legal process; and (iii) the use of diritto vivente in Italian

Constitutional jurisprudence, which greatly increases the time of a trial when it involves a

question of constitutional importance, and represents the extent to which the Constitutional Court

has fallen into complacency in maintaining competencies defined by tradition rather than law.

While the first factor would require an efficient, streamlined judicial procedure in order to

consistently issue convictions, the latter two factors represent means by which a case in the Italian

system takes longer than one in other legal systems. I will consider each of these factors in turn,

and note that, despite having the competency to change its practice with regard to the statute of

limitations, the Court has refused to elaborate on how its rulings against mechanisms of immunity

should have affected how the statute of limitations applies to Berlusconi’s cases. Thus, while the

Court may have tailored its competencies to better address the underlying issue, it instead left the

issues of implementation and enforcement to the political branches.

The legal mechanism most relevant to the trials of Berlusconi is the statute of limitations

in the Italian system. Outlined in Article 157 of the Italian Criminal Code, the statute of

limitations is different in Italy in that it outlines the time limit within which the trial must be

completed at all levels and a sentence handed down, or else the case is dropped.188 In 2005, the

law was amended by the Law of 5 December 2005, n. 251, pushed through by Berlusconi’s

coalition. The amended text changed the formula for calculating a maximum statute of

limitations, changing the maximum to equal the maximum sentence for the crime as provided by

188
Osterhaus, Anja. “Timed Out: Statutes of Limitation and Prosecuting Corruption in EU Countries.”
Transparency International. Nov. 2010. Web. 17 Feb. 2013.
<http://archive.transparency.org/content/download/57085/912315/Statutes+of+Limitation_web.pdf>.

78.
law, with a minimum of six years for felonies and four years for misdemeanors.189 While the

statute of limitations for most crimes remained unaffected, the new law conveniently lowered the

maximum statute of limitations for bribery, the crimes for which Berlusconi faced trial at the

time. After the 2005 law, Italy had the lowest maximum duration out of all of the European

countries.190

With such a strict statute of limitations, the only effective means for the Italian judicial

system to secure consistent convictions is through a streamlined judicial procedure with a low

volume of cases. Yet, in reality, the Italian judicial system has neither of these qualities. Not

only does the Italian legal system exercise civil law with a Kelsenian Constitutional Court, it also

has a Court that employs a time-consuming method of interpretation, diritto vivente. I will briefly

address each of these in turn.

As mentioned in the second chapter, a civil law system has two major categories of

differences from common law systems – the non-binding nature of precedent, and the institution

of a separate court for the review of constitutional matters. Also previously implied was the fact

that both of these differences mean that civil law systems see many more cases than common law

systems, particularly on the constitutional level. High case volumes have particularly been a

problem for civil law constitutional courts, as these courts do not have the competency – such as

that enjoyed by the US Supreme Court – to select a docket from the cases referred to them.191

Meanwhile, the lower Italian courts also suffer from a high caseload. This is in part due

to the non-binding nature of precedent in civil law systems, which means that each case on a

189
Gazzetta Ufficiale n. 285 del 7 Dicembre 2005. Text of the law in Italian can be found at: “Legge 5
dicembre 2005, n. 251.” Parliamento Italiano. 5 Dec. 2005. Web.
<http://www.camera.it/parlam/leggi/05251l.htm>.
190
Osterhaus 26-27. The data compiled in this report is from Nov. 2010, yet the problem nevertheless
remains the same in Italy, particularly given the rate at which charges are being dropped due to having
exceeded the statute of limitations.
191
As was mentioned in the previous chapter, the German Court has developed an institutional method of
coping with the high volume of cases, and as a result can arrange its docket to focus on important issues or
respond to political pressures. Italy, to my knowledge, does not have such an institutional structure, but
rather demands through the “living law” process that the lower court judges argue on the merits of the
constitutional challenge.

79.
separate legal issue must be tried separately. In another way, the high burden of the lower courts

is also due to the inability of Italian officials to agree on a means to mitigate the problem. The

Decree on mandatory mediation, on such attempt that was enacted on 20 March 2010, would

have required mandatory mediation for certain types of disputes, such as insurance claims.

However, the Italian Constitutional Court declared this law unconstitutional last October.192

Another attempt to curb this high caseload was through the Law of 5 December 2005, n. 251, the

law that amended the statute of limitations. Yet as has been shown above, such a law clearly had

other, less noble motives on the part of Berlusconi’s party.

Another factor that contributes to the impunity of Berlusconi, one that is linked to the

problems associated with Italy being a civil law system, is the time-intensive and restrictive mode

of interpretation of the Italian Constitutional Court – that of diritto vivente. Diritto vivente, or

“living law,” most basically represents the view that, of all the interpretations possible of the text

of a law, the court must primarily focus on that which has been previously interpreted in case law

– the law that lives in present legal interpretation.193 In Italian jurisprudence, this norm has been

both developed in legal theory and reinforced through the structure and practices of the

Constitutional Court when interpreting constitutional challenges.

In theory, Italian legal scholars note that diritto vivente represents the present life of the

legal norm, legitimated through the processes of institutions that employ legal interpretation in

order to turn that norm from mere theoretical exegesis into a more determinate and applicable

form.194 Since the institutions of law and the state are changing constantly, the interpretation that

gains favor will naturally change over time. Further, since the “living law” is constantly

changing, theorists argue that both jurisprudence and case law serve to justify and legitimate the

192
Cerasi, Francesco, Bruno Giuffré, and David Maria Marino. “Italy: Constitutional Court Rejects
Mandatory Mediation.” DLA Piper. 24 Oct. 2012. Web. 17 Feb. 2013. < http://www.dlapiper.com/italy-
constitutional-court-rejects-mandatory-mediation-10-24-2012/>.
193
Groppi, 132.
194
Resta, Eligio. “Diritto Vivente.” Diritto Vivente: Il ruolo innovativo della giurisprudenza. Ed. Alarico
Mariani Marini and David Cerri. Pisa: Pisa Univ. Press, 2007. Pp. 73-83. Print. Pg. 74.

80.
interpretation, as it exists in the present. It is also argued that the standard of “reasonableness” at

the level of the Constitutional Court hinges on the use of prior case law:

The role of legal interpretation would be, then, that of the mark “interpretation

and application” in which the living law is justified ex post. The same

justification steps in with the decisions of the Constitutional Court, in which use

is made of the metaphor of reasonableness, that is always read as something else

(the principle of equality, for example) and that amounts to a true process of

argumentation that can serve to legitimate or delegitimize a law.195

In practice, diritto vivente serves as an integral part of both the judicial structure and the

interpretive processes of the Constitutional Court. As Tania Groppi notes, the average citizen can

only access the Court via a posteriori review, often arising from a constitutional question in the

case of a lower court.196 In accord with the theory of “living law,” this ensures that the topic of

constitutional importance has seen some interpretation in the judicial process, and that a judge

with legal training submits the constitutional challenge. Indeed, the challenge submitted to the

Constitution “must indicate the relevance and plausibility of the question, the law challenged, and

the constitutional provision that it allegedly violates.”197

To bolster the importance of prior case law on the issue, the Court focuses not on the

issue in the abstract, but rather on the interpretation of the lower court – “constitutional review is

limited to the question presented and must be carried out ‘within the limit of the challenge.’”198

Not only does the Court ground its standard of reasonableness on interpreting the “living law,” its

195
Ibid 80. Translated from original: “Il ruolo della giurisprudenza sarebbe, allora, quello della nota
‘interpretazione, applicazione’ in cui il diritto vivente è giustificazione ex post. La stessa giustificazione
interviene nelle sentenze della Corte Costituzionale in cui si fa ricorso alla metafora della ragionevolezza,
che è sempre da leggere come qualche altra cosa (il principio d’uguaglianza, ad esempio) e che configura
un vero e proprio procedimento argomentativo che può servire tanto per legittimare quanto per
delegittimare una legge.”
196
Groppi 128-129. The Italian Court does have other means of access, but these apply primarily to
disputes between regions, or branches of the government.
197
Ibid 128.
198
Ibid 129.

81.
decisions also focus on the interpretation of lower courts, rather than ruling on the abstract issue.

This essentially means that, before the constitutional question has to be well formulated by the

lower court, and submitted with a complete argument to the Constitutional Court before the latter

body rules on the matter.

Taken together, these unique aspects of the Italian legal system place the Italian

Constitutional Court in a position that, in this case, limits its negotiative power with the

legislature over immunity rights. This is clear when one considers how the Corte Costituzionale

subjects itself to the statute of limitations, noting that its rulings of unconstitutionality do not

apply, either retroactively or in future cases, to instances in which the statute of limitations has

expired.199 Given that, as per the means of access to the Court, the statute of limitations may only

be challenged once it is set to expire in a particular case, it seems that the Italian Constitutional

Court is powerless to take issue with the very mechanism through which Berlusconi’s cases have

been dropped.

Another aspect of “living law” that is relevant to our consideration is the fact that all of

this detailed interpretation necessarily takes time, during which the statute of limitations

continues to expire. Each of the three cases on immunity and legitimate impediment presented to

Constitutional Court added at least seven months to the duration of the case.200 And since most

cases involving immunity are of a constitutional nature – as the Court as ruled in the 262/2009

decision – the process of diritto vivente, when combined with the problematic statute of

limitations, exacerbates the problems faced in holding Berlusconi accountable.

Taken together, this placement of the Italian Constitutional Court within the Italian legal

system seems to render them powerless to address the problem with the statute of limitations.

199
“The Italian Constitutional Court.” Corte Costituzionale. Feb. 2009.
<http://www.cortecostituzionale.it/ ActionPagina_324.do#titolo5_8>.
200
The 24/2004 decision took seven months, the 262/2009 decision took over a year, and the 23/2001
decision took nine months for the Constitutional Court to issue a ruling to the lower courts. Let us also not
forget that the decision means that the lower case can resume – it does not decide the lower case outright.
See Groppi 133.

82.
However, as Tania Groppi notes, these restrictions on the competencies of the Court are largely

based on practice:

The powers of the Italian Constitutional Court and the process of constitutional

review were regulated in the years immediately after the entry in force of the

Constitution and have not changed much since then… [t]he reason for this

flexibility is to the fact that, unlike ordinary courts, the Constitutional Court has a

much greater [discretion] in interpreting its procedure and practice thus allowing

it to modify the latter in order to achieve a desired goal or to more fully

implement constitutional values.201

In exploring this flexibility in changing practices for the sake of implementation, Groppi further

notes that “various types of judgments arise from the necessity, recognized by the Constitutional

Court, to consider the impact its decisions have on the legal system and on other branches of

government, in particular Parliament and the judiciary.”202

In these immunity cases, then, it would not have been a stretch for the Court to elaborate

on how the rulings against Berlusconi’s immunity and impediment laws would have affected the

statute of limitations in his cases – given that such an issue has an impact on the practices of the

other branches in Berlusconi’s trials. Yet, as press coverage of the most recent decision shows,

such elaboration never occurred.203 Such an account shows that, despite the Court having the

flexibility to elaborate on this question in theory, it has instead stuck to its traditional

circumscription of competencies, leaving the political branches to address the issue in practice.

201
Groppi 132.
202
Ibid 133.
203
Povoledo, Elisabetta and Gaia Pianigiani. “Automatic Immunity for Berlusconi Revoked.” New York
Times. 13 Jan. 2011. <http://www.nytimes.com/2011/01/14/world/europe/14italy.html >.

83.
 A New Hope – Enter Third Party Negotiation

As the current tennis match between the Court and Berlusconi shows, the latter has been

winning, due primarily to the Court’s refusal to change its position within the Italian legal

structure, particularly in relation to Italy’s statute of limitations. As highlighted above, the

competencies of the Court, as they presently stand, make evaluating any legislation related to the

statute of limitations very unlikely. Although the Court could in theory adjust its competencies to

better address the issue, it has in practice deferred to its perceived place within the overall issue.

Given that this mode of legislation has been at the root of Berlusconi’s continued impunity, it

would seem that the legislature has presently had the upper hand as the branches negotiate the

issue of parliamentary immunity.

However, as I will show below, the fact that the judiciary and legislature have been

navigating this issue at length has had the effect of highlighting the statute of limitations, in

combination with parliamentary immunity, as a fundamental issue area in Italian law. Non-

governmental organizations, social movements, and members of opposing political parties have

caught onto this fundamental problem, and have all taken a role in promoting legislative reform.

Given the results of the most recent Italian elections, these combined forces create a promising

means of resolving the issue.

On one level, the negotiations between the Court and Berlusconi have not gone unnoticed

by monitoring organizations. Transparency International, one such group, took the liberty to

narrow in on the flawed statute of limitations in Italy. In fact, in its 2010 analysis of comparative

statutes of limitations in Europe, Transparency International had only negative conclusions from

evaluating the Italian practice:

Lengthy proceedings and SoL [statute of limitations] are highly controversial

issues in Italy. The analysis found that the current regime shows serious

weaknesses. With one in 10 criminal proceedings being dismissed due to SoL

84.
 (no data is available specifically for corruption-related cases), the current SoL

regime constitutes a significant reason for impunity… The fact that proceedings

can prescribe after the first instance, even if an offender has already been found

guilty, is particularly striking.204

With Berlusconi having been at the helm of deciding any reforms to the already-problematic

statute of limitations, and with the Court not being more flexible with its competencies to better

address the issue, it comes as no surprise that many of his cases have been dropped due to the

statute of limitations having been exceeded.

The reports of NGOs such as Transparency International on the topic, while not

themselves the source of further negotiation, seem to have had some influence on an emerging

movement against the antics of Berlusconi, aptly called “antiberlusconismo.” The Purple

Movement, a social embodiment of this ideological thread, has been staging rallies against

Berlusconi since 2009, in an effort to unite Italians of differing political ideologies against the

former Prime Minister.205

The new political landscape following the 2013 election also provides a promising yet

extremely precarious balance of political parties that are in opposition to Berlusconi’s center-right

coalition. While Berlusconi’s party received six percentage points more than expected in the

election, his party fell far short of the majority required in both houses to maintain control over

the legislature, and thus maintain his scheme of impunity.206 The leading democratic coalition

headed by Pier Luigi Bersani, which won a majority in the Chamber of Deputies and a plurality in

204
Ibid 41-42.
205
Duncan, Kennedy. “Purple People Challenge Berlusconi.” BBC News. 13 Mar. 2010.
<http://news.bbc.co.uk/2/hi/europe/8565265.stm>. For a sociological perspective on the movement, see:
Coretti, Lorzeno. “The Purple Movement: An Overview of Berlusconi’s Italy through the lenses of Social
Movement Theory.” Communication Management Quarterly. Vol. 22: 2012, pp. 5-34.
206
“Ungovernability Wins.” The Economist. 2 Mar. 2013.
<http://www.economist.com/news/europe/21572783-result-has-come-bombshell-italy-and-across-euro-
zone-ungovernability-wins>.

85.
the Senate,207 immediately took the prospect of a coalition off the table. As CNN reported on

March 20th, the platform of Bersani’s party “included judicial reforms that reverse legislation

passed when Berlusconi held office, including expanding statutes of limitations on financial

crimes and stripping political leaders of immunity… Berlusconi has indicated that he does not

agree with Bersani's judicial and criminal reforms and that he would not work with the center-left

as long as those items are on the agenda.”208 Meanwhile, the President has urged Bersani to look

elsewhere to form a majority in the legislature, including the other political parties and other

outlets, including social unions.209 Mario Monti, the most recent Prime Minister and the recipient

of just over 10% of the vote and 6% of the seats in Senate, had considered the idea of forming a

coalition with Bersani prior to the election, suggesting common ties against Berlusconi’s

regime.210 As of today, however, the election, and with it the future of the Italian Parliament,

remains uncertain.

What seems certain, however, is the role that the shifting coalitions has taken in

Berlusconi’s ability to form a majority. Of the other three parties that hold a significant number

of seats, none of them seem to be protesting the continuation of his trials involving tax fraud and

sex scandals, and none of them are willing to give him a majority-granting coalition.211 Without a

majority in Parliament, there no longer stands a guarantee that Berlusconi will maintain

immunity. Thus, it seems that the Italian people have spoken – or at least so long as the three

other parties form some majority-attaining coalition. Otherwise the people may very well have to

speak again in the coming future.

207
Ibid.
208
Nadeau, Barbie L. “Italian Political Leaders Hope to Bring Direction to a Government at Sea.” CNN.
20 Mar. 2013. < http://www.cnn.com/2013/03/20/world/europe/italy-government-uncertainty>.
209
MacKenzie, James and Barry Moody. “Italy President Asks Bersani to See if Can Form Government.”
Reuters. 22 Mar. 2013. < http://www.reuters.com/article/2013/03/22/us-italy-vote-
idUSBRE92L0IG20130322>.
210
Cecci de Rossi, Martina. “Elezioni 2013, Mario Monti rassicura Pier Luigi Bersani
sull'antiberlusconismo ma rilancia la sfida sui programmi.” L’Huffington Post. 9 Jan. 2013.
<http://www.huffingtonpost.it/2013/01/09/elezioni-2013-mario-monti_n_2441331.html>.
211
Rossi, Sara. “Italy center-right lawmakers protest against Berlusconi trial.” Reuters. 11 Mar. 2013. <
http://www.reuters.com/article/2013/03/11/us-italy-berlusconi-idUSBRE92A0T720130311>.

86.
 The Italian Experience Compared

Before drawing comparisons to other jurisprudences, it would first be beneficial to

review the case progression in negotiative terms, both as a means of showing that the Italian case

constitutes constitutional negotiation, as well as to summarize the developments presented in this

chapter. Parliamentary immunity first became an issue when the center-right coalition passed the

Lodo Schifani, which, when presented to the Constitutional Court in the context of one of

Berlusconi’s criminal trials, was summarily struck down by the Court. In response, the

legislature enacted the Lodo Alfano, which was largely similar to the previous law, yet allowed

the accused to waive his or her right to defense, thus addressing the interpretive concern raised by

the Court in the previous case. In being presented with this law in the context of another criminal

trial, the Court again struck down the law, and then continued to determine that all rights of

immunity have a constitutional character, and thus cannot be implemented through ordinary law.

In response to this ruling, Berlusconi shifted gears, and passed laws to implement a new concept,

that of the “legitimate impediment.” The Court split the difference with this new mechanism,

acknowledging the potentially legitimate impediment due to the duties of public office while

simultaneously empowering the judiciary to decide whether such an impediment exists. Thus,

from a constitutional standpoint, the provisions saw a moderation from both sides over time.

During this whole process, however, the clock had been ticking on the statute of

limitations, which the Berlusconi regime had altered on several occasions in a manner that

benefitted the former Prime Minister. However, given that the Constitutional Court subjects itself

to the statute of limitations, and has refused to elaborate on how its decisions would affect the

statute of limitations in Berlusconi’s trials, it would appear that the legislature and judiciary were

negotiating on an uneven footing all along. It would therefore take the participation of periphery

actors – in this case NGOs and the mobilization of social movements against the Berlusconi

87.
regime – to motivate opposing political parties to develop platforms that advocate judicial

reforms that would hold Berlusconi accountable.

When considering the Italian case in terms of constitutional negotiation, it is clear that

this example required the intervention of a periphery actor, due primarily to the unique and rather

self-enforced placement of the Italian Constitutional Court in relation to other political actors. It

was only through a change in Parliament that the needed judicial reforms would ever be achieved,

and such a change in the composition of the Parliament required shifts in the attitudes of

constituent voters.

Both the Italian case and the Suresh exception in Canadian jurisprudence represent the

two means by which periphery actors can take an active role in the negotiations over

constitutional issues. While the two cases were similar in their use of third parties, these two

instances had some differences. With the Suresh exception, the need for periphery actors came

about due to the Supreme Court’s deference to the executive, a deference that technically

transgressed prior commitments to international norms. By contrast, the Italian case saw no

deference on part of the Constitutional Court over the issue of parliamentary immunity. Rather,

the Court left the question open as to how the unconstitutional ruling would affect the statute of

limitations in Berlusoni’s trials. The legislature, then, at the time controlled by Berlusconi’s

center-right coalition, refused to enact the reforms that would have allowed for the effective

implementation of the Court’s decisions against Berlusconi’s immunity. This nuanced form of

“non-enforcement” on part of the legislature required the action of periphery actors in the manner

described above.

In this sense, the Italian case also bears some resemblance to the negotiations over habeas

rights seen in the United States. As Scheppele’s account showed, “new deference” was marked

by a gap between right and remedy. While the Supreme Court announced a sweeping notion of

rights of habeas corpus, on the ground the situation of the Guantánamo detainees. Likewise,

while the Italian Court consistently ruled against rights to immunity enacted by the legislature, it

88.
refused to elaborate on how the rulings would affect the practical considerations in the trials –

namely the statute of limitations. Berlusconi was then able to maintain impunity by repeatedly

delaying and appealing decisions such that the statute of limitations, reduced by his legislature on

several occasions, expired. The Italian case thus presents a similar gap between right and

remedy, although in a more nuanced sense of the expression.

89.
 Split Audience Negotiation – Das Bundesverfassungsgericht

The citizen’s claim to democracy, ultimately rooted in human dignity, would

collapse if Parliament abandoned core elements of political self-determination and
thus permanently deprived citizens of their democratic possibilities of influence.

– Das Bundesverfassungsgericht, 7 Sept. 2011

With the ESM judgment the Court abandoned its long-established

position that there were certain core areas of national sovereignty
which required that the Bundestag – the German Parliament –
retained its budgetary autonomy. Now nothing seems non-negotiable.

– Dr. Gunnar Beck, 22 Sept. 2012

While the Italian courts were determining the culpability of Berlusconi last fall, the

German judiciary was addressing a rather different issue. Last September, the

Bundesverfassungsgericht, also known as the Federal Constitutional Court of Germany (FCC),

struck down an injunction against the ratification of the European Stability Mechanism (ESM),

thereby allowing the German government to sign off on contributing a maximum of €190 billion

to the Eurozone bailout efforts, with subsequent changes or contributions to be at the discretion of

the German Parliament.212 Together, such a total contribution represents over sixty percent of the

country’s reported budget for 2013.213

German government officials and economists praised the decision, while the value of the

Euro surged to its highest since that previous summer.214 Despite such political praise, however,

one must question how this decision squares with the balance of powers within the German

constitutional order. Dr. Gunnar Beck, a EU lawyer and legal philosopher, criticizes the decision

212
“Green Light for ESM: German Court OKs Permanent Bailout Fund with Reservations.” Das Spiegel.
12 Sept. 2012. Web. 21 Feb. 2013. <http://www.spiegel.de/international/germany/german-high-court-
oks-permanent-bailout-fund-with-reservations-a-855338.html>.
213
Bloomberg reports the 2013 German budget to be €303 billion. See: “German Parliament Approves
2013 Budget Despite Risk to Deficit.” Bloomberg. 23 Nov. 2012. Web. 21 Feb. 2013.
<http://www.bloomberg.com/news/2012-11-23/german-parliament-approves-2013-budget-amid-risk-to-
deficit.html>.
214
Das Spiegel, 12 Sept. 2012.

90.
on part of the FCC, claiming that the Court has become a compromised tool of the German

government.215 Many other constitutional scholars share similar views, and were taken by

surprise when the judgment was issued last fall.

Has this most recent deference on the part of the FCC been indicative of politicization?

Has the Court indeed been politically compromised, as Beck seems to think? Such questions

necessitate an examination of the German Constitutional Court, and its complicated relationship

with the continued integration of the European Union. In examining this relationship, I will show

that if we approach this issue from the lens of judicial negotiation, stepping back from that

singular case and assessing the Court’s take on the issues overall, one can see that the Court has

not become the political tool that many critics think it has.

Approaching the topic from this angle will require me to draw from the interpretations

offered by the Court from the 1974 Solange I case through this most recent 2012 decision on the

ESM. In examining this progression of cases, I will emphasize how the 2011 Greece Bailout

decision represents an important transition in the issues over which the Court negotiated the terms

of EU integration. While the cases before represented ideological conceptions of Germany’s

relationship which EU integration, the judgments issued after the Eurozone crisis had started

began to take on a more political character as the constitutional issues bordered on political

question of sovereignty, as expressed through budgetary autonomy.

With this transition in the types of issues faced by EU integration, I will then argue that

such a transition provided the FCC with the opportunity to split the parties with which it

negotiates. Ideologically, the German Court has consistently negotiated with the ongoing EU

integration efforts, as the institutions of the Union actually bolster the most fundamental rights

promulgated by the Basic Law. Once faced with the practical, and rather political,

215
Beck, Gunnar. “The German Constitutional Court no longer takes itself seriously, but Germans still
believe in the Bundesbank.” EUtopia. 22 Sept. 2013. Web. 4 Feb. 2013.
<http://eutopialaw.com/2012/09/22/the-german-constitutional-court-no-longer-takes-itself-seriously-but-
germans-still-believe-in-the-bundesbank/#more-1477 >.

91.
implementation of these integration efforts, however, the Court specifically empowered to the

German Parliament to further negotiate terms of sovereignty in budgetary terms. Put another

way, the German Court has negotiated with two audiences ever since the Greece Bailout decision

– after this case, it: (i) continued defer to EU integration in theory, while (ii) starting to invoke the

Bundestag and Bundesrat as an audience in the negotiations, one that has the power to define the

practical boundaries of national sovereignty. Importantly, I will also establish that this decision

has roots dating back to the Maastricht decision in 1993, demonstrating the applicability of

constitutional negotiation as an evaluative concept in this case.

While having an identical effect in practice, this changed audience of judicial negotiation

on part of the FCC shows that the German Court is not ready to hand the European Union a blank

check to expand its competencies. Rather, the FCC stands against handing sovereignty over to

European institutions, yet will expect the German Parliament to fill in the blanks on what exactly

“handing sovereignty over” means in practice.

German Jurisprudence on EU Integration

The tensions between the German Court and EU integration efforts date all the way back

to the 1974 Solange I case, where the Constitutional Court ruled on integration before the EU was

actually a “union.” In the context of Costa v. ENEL – the 1964 case in which the European

Economic Community (EEC) asserted legal supremacy in the context of any conflict between

national and European law216 – Solange I established a German reservation against this declared

216
For the text of Costa v. ENEL, see: 6/64, Flaminio Costa v. ENEL, 1964, ECR 585, found at <http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61964CJ0006:EN:PDF>.

92.
EEC supremacy. Specifically, the decision established German supremacy over any conflicts that

may emerge between European and German law.217

As the European Community deepened, and further elaborated a doctrine for the

protection of fundamental rights, the FCC moderated its position on legal supremacy. With the

Solange II case of 1983, the Court decided that “so long as” the Community ensured protection of

basic rights in accordance with the German constitution, it would no longer exercise its

jurisdiction to decide on EEC secondary legislation.218 As Dr. Gunnar Beck points out, this

decision necessary implies that the FCC still retains the jurisdiction to evaluate European

legislation – “Solange II therefore did not affect the substance of the FCC’s judgment in Solange

I, namely that the power of the national government to transfer sovereign rights extends only so

far and no further than is compatible with… the Basic Law.”219 Put another way, the theoretical

stance of the Court remained constant, while, in practice, the Court conditionally allowed the

practices of the EEC to continue.

The Maastricht Decision

What seemed to be a settled matter exploded once the European Union began to take

shape. When the Treaty of Maastricht faced ratification in 1993, several German members of the

217
BVerfG 73, 339, 29 May 1974. Summary of the decision can be found in German at: “Internationales
Recht in der Verfassungsbeschwerde und in der Grundrechtsordnung.” Universität Bonn. <http://jura.uni-
bonn.de/fileadmin/Fachbereich_Rechtswissenschaft/Einrichtungen/Lehrstuehle/Oerecht3/Lehrstuhlinhaber/
Die_gemeinschaftsrechtliche_Perspektive_01.pdf>.
218
BVerfGE 73, 339, 22 Oct. 1986. A fully translated version of the case can be found at: “Institute for
Transnational Law.” School of Law, University of Texas at Austin. 1 Dec. 2005. Web. 22 Feb. 2013.
<http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=572>. Dr.
Gunnar Beck also provides an account of this case progression, beginning with the Solange cases, which
can be found at: “The German Constitutional Court versus the EU: self-assertion in theory and submission
in practice – Euro Aid and Financial Guarantees, Part 1.” EUtopia Law. 24 Oct. 2011. Web. 12 Jan. 2013.
<http://eutopialaw.com/2011/10/24/%E2%80%9Cthe-german-constitutional-court-versus-the-eu-self-
assertion-in-theory-and-submission-in-practice-%E2%80%93-euro-aid-and-financial-guarantees-part-1/>.
While future blogs cover a similar docket of cases, my account highlights different aspects of each decision
as I draw a conclusion less critical than Dr. Beck. For purposes of comparison, however, I will cite the
blogs of Dr. Beck where appropriate.
219
Beck, Part 1.

93.
European Parliament brought the matter of a European Union before the FCC. In their

constitutional complaints, the petitioners primarily alleged that a European Union would violate

Article 38 of the Basic Law, which “guarantees every citizen the right to democratically

legitimate representation in the Federal Parliament and protects the right to participate in the

exercises of State power.”220 Assuming this violation, the petitioners further argued that such a

treaty indirectly diminishes the realization of rights contained in Articles 1.1, 2.1, 5.1, and 9.1 in

conjunction with Articles 21.1, 12.1, and 14.1.221 One petitioner states that these violations are

demonstrated most clearly by the monetary union proposed by the Treaty of Maastricht. In

forcing German citizens into a common currency from which it may not withdraw, the treaty, as

petitioner contends, renders fiscal policy as no longer subject to constitutional complaint, and a

matter on which Germany can be overruled by other European institutions.222

In deciding on the constitutionality of the Maastricht Treaty, the Constitutional Court

stressed the uncertain nature of the direction of European integration, given by its prescriptive

description of the democratic legitimation that integration must continue to uphold:

The important factor is that the democratic foundations upon which the Union is

based are extended concurrent with integration, and that a living democracy is

maintained in the Member States while integration proceeds. If too many

functions and powers were placed in the hands of the European inter-

220
BVerfG 89, 155, 12 Oct. 1993, at 37. Article 38.1 of the Basic Law reads: “Members of the German
Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives
of the whole people, not bound by orders or instructions, and responsible only to their conscience.” For the
text of the German Basic Law, see: “Basic Law for the Federal Republic of Germany.” Deutscher
Bundestag. 2010. <https://www.btg-bestellservice.de/pdf/80201000.pdf>.
221
Ibid, at 40-41. Importantly, the petitioners argue that since citizens have a diminished access to the
exercise of State powers, they necessarily have a diminished guarantee of protection for the fundamental
rights normally protected by the branches of State. Articles 1, 2, 5, and 9 refer to the rights of dignity,
development of personality, freedom of expression, and freedom of association, respectively. Articles 12,
14, and 21 refer to the rights of occupational freedom, property, and the formation of political parties,
respectively. See: “Basic Law for the Federal Republic of Germany,” at supra, note 219.
222
Ibid, at 42. The specific constitutional complaints raised other issues. Yet for the sake of conciseness, I
will focus on only those considered in detail by the Court, as well as those that become salient with future
cases.

94.
 governmental community, democracy on the level of the individual States would

no longer be able to convey adequately that legitimation of the sovereign power

exercised by the Union… All of this leads to the conclusion that the German

Federal Parliament must retain functions and powers of substantial import.223

In attempting to define the extent to which an unconstitutional transfer of sovereignty would take

place, however, the FCC was only able to cite Article 23.1 of the Basic Law, which permits the

realization of a unified Europe.224 Holding Articles 38.1 and 23.1 together, the Court determined

that the former is only violated when the transnational organization established, in the continued

process of integration, oversteps the legally sufficient and precise limits accorded to it.225 In

leaving this possibility – that the EU may overstep its bounds in determining some form of self-

autonomy – open, the Court implied some continued power to evaluate whether the integration of

the EU continues the uphold the democratic legitimation through the competencies of sovereign

States, a power retain by State institutions under the principle of subsidiary.226 Indeed, the Court

mentions that “such membership may, however, be terminated by means of an appropriate act

223
Ibid, at 100. The original text is as follows: “Entscheidend ist, daß die demokratischen Grundlagen der
Union schritthaltend mit der Integration ausgebaut werden und auch im Fortgang der Integration in den
Mitgliedstaaten eine lebendige Demokratie erhalten bleibt. Ein Übergewicht von Aufgaben und
Befugnissen in der Verantwortung des europäischen Staatenverbundes würde die Demokratie auf
staatlicher Ebene nachhaltig schwächen, so daß die mitgliedstaatlichen Parlamente die Legitimation der
von der Union wahrgenommenen Hoheitsgewalt nicht mehr ausreichend vermitteln könnten... Aus alledem
folgt, daß dem Deutschen Bundestag Aufgaben und Befugnisse von substantiellem Gewicht verbleiben
müssen.” See: Wegen, Gerhard and Christopher Kuner. Germany: Federal Constitutional Court Decision
Concerning the Maastricht Treaty. 33 I.L.M. 388, 1994.
224
Ibid, at 93. The entirety of Article 23.1 of the Basic Law reads: “With a view to establishing a united
Europe, the Federal Republic of Germany shall participate in the development of the European Union that
is committed to democratic, social and federal principles, to the rule of law, and to the principle of
subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded
by this Basic Law. To this end the Federation may transfer sovereign powers by a law with the consent of
the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and
comparable regulations that amend or supplement this Basic Law, or make such amendments or
supplements possible, shall be subject to paragraphs (2) and (3) of Article 79.” Article 79 refers to the
process of amending the Basic Law. See: “Basic Law for the Federal Republic of Germany,” cited at
supra, note 219.
225
Ibid, at 106 and 116.
226
Ibid, at 158-161.

95.
being passed,” and continues to leave the Parliament with the opportunity to invoke an exit-

option should the EU develop an unconstitutional amount of sovereignty down the road.227

In continuation of its position in the Solange II decision, the Court further asserted a form

of ultra vires review on the implementation of EU laws by state institutions. When hypothesizing

on the possibility of the EU to extend its competencies in an unconstitutional matter, the FCC

warned that laws passed in this situation would be struck down by constitutional review:

If, for example, European institutional or governmental entities were to

implement or to develop the Maastricht Treaty in a manner no longer covered by

the Treaty in the form of it upon which the German Act of Consent is based, any

legal instrument arising from such activity would not be binding within German

territory. German State institutions would be prevented by reasons of

constitutional law from applying such legal instruments in Germany.228

Implicitly, the Court here established itself as the final authority in determining whether the

transfer of powers to EU organs had been approved by the Bundestag, adequately respect

fundamental rights, and are sufficiently and constitutionally certain.229 Thus, while allowing EU

integration efforts to continue with the effect of the decision, the Court’s analysis of the Treaty of

Maastricht provided an opportunity to bolster domestic competencies in the event that integration

overstepped the detailed boundaries outlined in the treaty.

227
Ibid, at 112. Translated from original, which reads: “diese Zugehörigkeit aber letztlich durch einen
gegenläufigen Akt auch wieder aufheben könnten.”
228
Ibid, at 106 (emphasis added). Translated from original: “Würden etwa europäische Einrichtungen oder
Organe den Unions-Vertrag in einer Weise handhaben oder fortbilden, die von dem Vertrag, wie er dem
deutschen Zustimmungsgesetz zugrunde liegt, nicht mehr gedeckt wäre, so wären die daraus
hervorgehenden Rechtsakte im deutschen Hoheitsbereich nicht verbindlich. Die deutschen Staatsorgane
wären aus verfassungsrechtlichen Gründen gehindert, diese Rechtsakte in Deutschland anzuwenden” This
analysis is also provided in: Meessen, Karl M. “Hedging European Integration: The Maastricht Judgment
of the Federal Constitutional Court of Germany.” Fordham International Law Review. Vol. 17(3): 1993,
pp. 511-530. Pp. 520-524.
229
Dr. Beck also outlines a simple conception of ultra vires review in: Beck, Gunnar. “The German
Constitutional Court versus the EU: self-assertion in theory and submission in practice – Euro Aid and
Financial Guarantees, Part 2.” EUtopia Law. 25 Oct. 2011. Web. 13 Jan. 2013.
<http://eutopialaw.com/2011/10/25/the-german-constitutional-court-versus-the-eu-self-assertion-in-theory-
and-submission-in-practice-%E2%80%93-euro-aid-and-financial-guarantees-part-2/>.

96.
 Finally, the FCC, in deciding on the Maastricht Treaty, also entertained the complaints

that the establishment of a single monetary union would potentially undermine the protection of

rights enumerated by Articles 2.1 and 14 of the Basic Law.230 In considering this issue, the Court

held that in ratifying the Maastricht Treaty, the government is simply paving the way for further

integration into a community of laws, rather than subjecting itself to an uncontrollable process

inevitably tended towards monetary union.231 Further, the FCC concluded by noting the

inherently political nature of deciding on the details of a monetary union:

The question raised, therefore, is a political one, rather than that of constitutional

law. The decision to agree upon monetary union and to implement it without at

the same time or immediately thereafter entering into political union is a political

decision for which the relevant governmental institutions must assume political

responsibility… Within the limits of what is permissible under constitutional law,

political responsibility must be assumed in turn for this decision.232

Thus, in its addressing of the risks of a “monetary union,” the Court left the specifics of the

process to political institutions, subject to broad limits within constitutional law. As we will see,

this will become highly relevant in future decisions once the Eurozone crisis forces the Court to

address the practical concerns of financial integration.

For now, though, it is clear that the German Constitutional Court, up through its decision

on the Maastricht Treaty, both simultaneously allowed European integration and asserted its

authority to have the last word on constitutional issues down the road. Such constitutional issues

230
See supra, note 220.
231
BVerfG 89, 155, 12 Oct. 1993, at 146.
232
Ibid, at 151. Translated from original: “Hiermit wird indes keine verfassungsrechtliche sondern eine
politische Frage aufgeworfen. Die Währungsunion ohne eine gleichzeitige oder unmittelbar nachfolgende
politische Union zu vereinbaren und ins Werk zu setzen, ist eine politische Entscheidung, die von den dazu
berufenen Organen politisch zu verantworten ist... Diese Entscheidung ist dann wiederum - im Rahmen des
verfassungsrechtlich Zulässigen - politisch zu verantworten.“

97.
clearly came when the Court was called to examine the next step of EU integration, proposed by

the Treaty of Lisbon.

The Lisbon Decision

In substance, the German Court faced largely the same issues as had been confronted in

the Maastricht decision. The constitutional complaints in response to the treaty, which sought an

injunction to halt the process of ratification, were filed on behalf of professors, academics, and

over fifty members of the German Bundestag. In seeking the injunction, the legislators

challenged the contents of the treaty itself, as well as an accompanied law, the Act Extending and

Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters

(Extending Act).233 Regarding the former, the petitioners held that the treaty violates Article 38

the Constitution, which upholds the principle of democratic legitimation.234 Under objections

related to the same article, the complainants argue that the Lisbon Treaty “transgresses the

boundary of what the principle of sovereign statehood permits as regards the transfer of sovereign

powers,” arguing that Lisbon represents an overstep in the process that had proceeded from the

Maastricht Treaty.235 Related to the Extending Act, the parties submitting the complaint claim

that the law violates the democratic principle by creating the possibility of a scenario in which the

German Bundestag would be forced to bring a subsidiary action against the will of the majority,

thereby violating Article 38 of the Constitution.236

233
BVerfG, 2BvE 2/08, at 99.
234
Ibid, at 100-107.
235
Ibid, at 112.
236
Ibid, at 127. Specifically, the petitioners argue that “The German Bundestag would be deprived of its
right of opposition pursuant to Article 48.7(3) Lisbon TEU in those cases in which the focus of the
European Council’s initiative refers to concurrent legislation or in which no clear priority can be
ascertained.” As in the Maastricht decision, the Court faced many more objections from within the
specifics of the constitutional complaints, yet these were either immediately declared unfounded, or stand
as subsidiary to the violation of Article 38.

98.
 In a manner similar to the Maastricht decision, the FCC immediately reduced the issue to

the principle of democratic legitimation, in light of the openness to European integration

established by Article 23.1 of the Constitution. Yet unlike the Maastricht decision, the Court

used a much stronger interpretation of both Articles that seemed on first glance to pull the ruling

in two directions. On one hand, the Court grounds its interpretation on a very expansive view of

Article 23.1, claiming that:

The constitutional mandate to realise a united Europe, which follows from

Article 23.1 of the Basic Law and its Preamble means in particular for the

German constitutional bodies that it is not left to their political discretion whether

or not they participate in European integration. The Basic Law calls for European

integration and an international peaceful order. Therefore, not only the principle

of openness towards international law, but also the principle of openness towards

European law applies.237

Between the two decisions, the Court essentially went from claiming that Article 23.1 permits the

realization of a unified Europe, to declaring that the same Article requires it.

Such an increased amount of approval to EU integration, however, was met with an

equally strong set of boundaries to integration, as well as competencies through which German

bodies can determine if integration has gone too far. In establishing these mechanisms, the FCC

began by stating that “[t]he Basic Law does not authorise the German state bodies to transfer

sovereign powers in such a way that their exercise can independently establish other

competencies for the European Union. It prohibits the transfer of competence to decide on its

237
Ibid, at 225. The original version reads: “Der aus Art. 23 Abs. 1 GG und der Präambel folgende
Verfassungsauftrag zur Verwirklichung eines vereinten Europas bedeutet insbesondere für die deutschen
Verfassungsorgane, dass es nicht in ihrem politischen Belieben steht, sich an der europäischen Integration
zu beteiligen oder nicht. Das Grundgesetz will eine europäische Integration und eine internationale
Friedensordnung: Es gilt deshalb nicht nur der Grundsatz der Völkerrechtsfreundlichkeit, sondern auch der
Grundsatz der Europarechtsfreundlichkeit.”

99.
own competence.”238 In setting this so-called Kompetenz-Kompetenz limit to integration, the

Court began to specify certain means through which it can determine if integration efforts had

extended into unconstitutional territory – ultra vires review on one hand, and identity review on

the other. While ultra vires review had first emerged in the Maastricht decision, the concept of

identity review was entirely novel.239 In this latter form of review, the Court contends that the

Basic Law requires a restriction of “the transfer and exercise of sovereign powers to the European

Union in a predictable manner, particularly in central political areas of the space of personal

development and the shaping of living conditions by social policy.”240 Such a requirement

creates substantial policy matters into which European policy may not cross, including (i)

decisions on criminal law, (ii) the monopoly on the use of force, (iii) fundamental decisions on

public revenue and expenditure, (iv) the shaping of living conditions, and (v) policy issues of a

cultural interest, such as areas of family law, the education system, and laws on religious

communities.241 Barring these restrictions, the FCC decided that the Lisbon Treaty falls into line

with Articles 23.1 and 38 of the Constitution.

Turning to the Extending Act, the Court agreed with the arguments submitted by the

petitioners. Yet in rejecting the law, the German Court focused on the issues of specificity.

Arguing that the law violates Article 23.1, the FCC explained that “[t]he Extending Act does not

comply with these requirements in so far as the Bundestag and the Bundesrat have not yet been

accorded sufficient rights of participation in European lawmaking and treaty amendment

238
Ibid, at 233. The original reads: “Das Grundgesetz ermächtigt die deutschen Staatsorgane nicht,
Hoheitsrechte derart zu übertragen, dass aus ihrer Ausübung heraus eigenständig weitere Zuständigkeiten
für die Europäische Union begründet werden können. Es untersagt die Übertragung der Kompetenz-
Kompetenz.”
239
Ibid, at 241. See supra, note 227, for the implicit reference in the Maastricht decision. In a way, this
statement of the ultra vires review is stronger, as it specifically invokes the authority of the Constitutional
Court to intervene, rather than implying that constitutional law would render the unconstitutional European
laws as inapplicable to the German system.
240
Ibid, at 251.
241
Ibid, at 252. These legal areas are also listed at: Beck, pt. 2. Beck goes further to contend that these five
areas create a sixth area of “budget autonomy,” yet I would instead consider autonomy over the budget as a
prerequisite to maintaining all five of these social spheres. This point is further discussed below in context
of the Greece Bailout decision.

100.
procedures.”242 The Court thus postponed the ratification of the Lisbon Treaty until the

Parliament re-drafted a more specific Extending Act that better reflects the “required rights of

participation of the legislative bodies in the process of European integration.”243

In some ways, the negotiative decision shown in the Lisbon decision echoes that of

Maastricht. Within the four corners of the same decision, the Court simultaneously enabled the

continuation of European integration while asserting its continued authority of having the

administrative “last word” on whether integration efforts remain in compliance with the Basic

Law. Likewise, in both decisions, the German Court empowered other the legislature to have a

role in deciding the politically specific aspects of integration – while in Maastricht the political

institutions were left to decide the specifics of the monetary union, Lisbon charged them with

enumerating, through the Extending Act, the extent to which they would have a role in shaping

European institutions. Yet, as aforementioned, the approval afforded to EU integration in Lisbon

was much more polarized in that the Court more fervently established a requirement to

integration under Article 23.1, while at the same time establishing a wider and more specific set

of means through which the FCC or the Bundestag could intervene in European matters if

required.

The remaining cases that involve EU integration do so in a substantially different way.

Rather than questioning whether EU integration is compatible with the German Constitution in

theory, the constitutional complaints that follow address the extent to which Germany has been

forced to contribute to transnational institutions in the face of practical economic concerns. In

response to the financial crisis among countries in the Eurozone, the EU sought to devise several

insurance mechanisms aimed towards preventing a collapse of the currency. Naturally, these

mechanisms required funds, and thus required some institutional method for raising money from

more stable states and dispersing the funds to the nations most harmed by the crisis. Since the

242
Ibid, at 409.
243
Ibid, at 410.

101.
mechanisms were developed as EU institutions, it was required that they were first approved

under the domestic constitutions of each member state.

In this context, the cases that follow emerged from the attempts to have these

mechanisms ratified in Germany. Specifically, the cases revolve around the financial

commitments of Germany to the European Financial Stabilization Mechanism (EFSM), a EU

institution designed to coordinate relief efforts to those Member State economics that were

compromised by the Eurozone crisis, and the European Financial Stability Facility (EFSF), which

governs inter-state agreements on loans and credit lines.244 In a sense, these cases question the

extent to which Germany remains liable to EU integration once unforeseen circumstances cause

deviations from the ideal plan outlined by the Lisbon Treaty. In another sense, these cases

approach an exceedingly political facet of sovereignty, questioning the exact point, in practical

and financial terms, beyond which Germany can be considered to have relinquished its status as a

sovereign entity, and at what point the European Union, particularly the mechanisms that

emerged in response to the economic crises, can be considered to exhibit Kompetenz-Kompetenz.

The Greece Bailout Decision

The 2011 Greece Bailout decision represents the first of such cases. The constitutional

complaints issued came in direct response to the monetary policy passed through the German

Parliament the previous year. Specifically, the German Parliament pledged €22.4 billion to the

EFSF, with €8.4 billion payable within the first year,245 and at least a €123 billion contribution to

the EFSM, with a possibility of this amount being increased by 20% due to “unforeseen and

244
BVerfG, 2 BvR 987/10, at 14. All citations, unless otherwise noted, refer to the paragraphs within the
decisions.
245
Ibid, at 5.

102.
absolute need.”246 In their complaints, the petitioners argued that such an extensive financial

contribution represents a violation of the all-too-familiar Article 38.1 of the Basic Law.

Yet, instead of arguing on theoretical terms, as had been done in Maastricht and Lisbon,

the petitions in this case presented highly practical and political means by which the Greece

bailout package violated Article 38. On one level, the complainants contended that parliamentary

contributions to a bailout fund, in that they leave parliamentary control once they have been

given, present an uncontrollable effect on the stability of the European Union currency.

Together, the contributions and their unforeseen effects on inflation impact “Parliament’s right to

decide on the budget, which defines democratic parliamentarianism” and restricts this right “in a

way which surrenders existential statehood in an anti-democratic matter.”247

In another form of the same alleged violation, the petitioners questioned the extent to

which Germany signed up for this commitment when ratifying earlier treaties. In this argument,

the stabilization mechanism is alleged to violate Article 125.1 on the Treaty of the Functioning of

the European Union (TFEU), “which rules out European Union liability for commitments of

Member States and liability of the Member States for commitments of other Member States,” a

measure designed to “ensure comprehensive legal responsibility of the Member States for their

own public-revenue conduct.”248 This angle enters highly political territory, as it rather bluntly

assigns the liability for Greece’s economic situation on the country’s financial policy. However,

it still represents a salient question on the topic of EU sovereignty, pondering to what extent other

Member States are responsible for the economic troubles of other members. It further questions

when the ultra vires review should emerge, and whether it should when Germany is forced into

institutional commitments that are outside of its control.249

246
Ibid, at 18.
247
Ibid, at 33-36.
248
Ibid, at 40.
249
Ibid, at 45.

103.
 One final approach on part of the petitioners, one that has intuitive appeal, considers the

sheer size of Germany’s contribution in relation to its annual budget. With financial commitment

of €170 billion to the welfare of other EU Member States, the German government essentially

pledged “a total amount which is much larger than the largest federal budget item and which

greatly exceeds half of the federal budget.”250 While the statistics alone do not constitute an

argument for the Court, their relation to the functions of Parliament that constitute the “central

political areas of the space of personal development and the shaping of living conditions by social

policy,” that were protected by the Lisbon decision, represents a highly salient factor for

consideration.251

In evaluating these three political claims, the FCC – after having also heard opinions

from the Bundestag, the Federal Government, the Bundesbank, and the European Central Bank –

began by noting the changed nature of these cases in stating the unprecedented nature of the

challenged statutes:

[I]t is sufficient to submit that the challenged statutes are merely the first steps

towards a historically unprecedented automatic liability which is becoming

established and altogether is constantly increasing and which does indeed

correspond to the shaping or transformation of transferred sovereign powers

within the meaning of Article 23.1 of the Basic Law and at all events is designed

to be such a shaping or transformation.252

In responding to the petitioners’ complaints, the Court first noted that the in extent to which the

complaints address government policy measures, they are inadmissible insofar as they do not

250
Ibid, at 51.
251
See supra, note 239. While the statement did not explicitly mention these dimensions from Lisbon, the
raising of these figures in conjunction with the “principle of parliamentary budget responsibility”
nonetheless gets at the same issues. See: BVerfG, 2 BvR 987/10, 7 Sept. 2011, at 51, for this implicit
connection.
252
Ibid, at 107.

104.
substantiate the direct personal burden required of a constitutional complaint.253 The FCC did,

however, admit the complaints insofar as they challenged the budgetary autonomy of the German

Bundestag and thus threatened a violation of Articles 38.1, 20.1 and 20.2 in conjunction with

Article 79.3 of the Basic Law.254 In this sense, the Court established the link between budgetary

autonomy and the exercise of necessary State functions as measures of sovereignty, a link hinted

at in Lisbon through the concept of identity review.255

With this analysis, the Court establishes that the “relevant factor for adherence to the

principles of democracy is whether the German Bundestag remains the place in which

autonomous decisions on revenue and expenditure are made, even with regard to international

and European commitments.”256 In this context then, the FCC works to establish general

guidelines that the Bundestag must follow in order not to transfer an undue and unconstitutional

amount of sovereignty. Specifically, the Bundestag may not approve of “imprecise budgetary

authorisations,”257 and “permanent mechanisms… which are tantamount to accepting liability for

the decisions by free will of other states.”258 In attempting to specify what constitutes

infringements of these restrictions, however, the Court leaves the question open for the

legislature, which it claims ought to have latitude of assessment in determining what precise

amounts of contributions are acceptable:

With regard to the probability of having to pay out on guarantees, the legislature

has a latitude of assessment, which the Federal Constitutional Court must respect.

253
Ibid, at 114-117.
254
BVerfG, 2 BvR 987/10, 7 Sept. 2011, at 93. Article 20 governs the democratic principle, as it relates to
the rights of citizens to elect officials to represent them. Article 79.3 prohibits an amendment to the
substance of Articles 1 and 20. Together, these provisions represent a more general principle of democracy
that has a practical application in Article 38.1. See: “Basic Law for the Federal Republic of Germany.”
255
Indeed, the Court states that “[t]he budget… is not merely an economic plan, but at the same time a
sovereign act of government in the form of a statute… The state functions are presented in the budget as
expenses which must be covered by revenue under the principle of compensation. The extent and structure
of the budget thus reflect overall government policy.” See Ibid, at 123.
256
Ibid, at 124.
257
Ibid, at 125.
258
Ibid, at 128.

105.
 The same applies to the assessment of the future soundness of the federal budget

and the economic performance capacity of the Federal Republic of Germany. In

this connection, the Federal Constitutional Court may not with its own expertise

usurp the decisions of the legislative body which is the institution first and

foremost democratically appointed with this task.259

With this logic, the FCC left the German Bundestag to determine whether the contributions to the

European stability efforts in Greece represent an infringement on budgetary autonomy. Given

that the Parliament had recently voted in favor of these efforts, the Court moved to cautiously

declare the bailout institutions constitutional, given that they remained sufficiency precise and

impermanent in nature.

For our purposes, the changed audience of the Court’s approval represents the most

important shift in this decision, as compared with previous cases on EU integration. While

allowing the process of European integration to continue when considered in theoretical and

institutional terms, in practice the FCC would rather empower domestic institutions to consider

hard restrictions on budgetary contributions. In a sense, this case represents a dividing line in the

role that the FCC has attributed to Parliament in EU integration efforts. While in Maastricht and

Lisbon the Court has empowered Parliament to more clearly define its role – particularly through

its rejection of the Extending Act in the latter case, in this most recent decision the Court

specifically left the legislature to decide an important limit on integration, implying that it has

developed a competency to evaluate Germany’s relation to EU integration.260 Although deferring

259
Ibid, at 132.
260
It is at this point that I depart with Dr. Beck’s analysis of German deference to EU integration. While he
acknowledges that the Court did defer to the legislature on the specifics, he argues that overall the Court
continues to defer directly to EU integration in that it “shies away from challenging the political
judgements of the ‘democratic’ decision-maker and grants the Federal Government and Bundestag a
substantial margin of discretion in evaluating the likely financial and political effects of further steps
towards greater integration and more far-reaching financial commitments to the EU and other Member
States.” See: Beck, Gunnar. “The German Constitutional Court versus the EU: self assertion in theory and
submission in practice – Euro Aid and Financial Guarantees. Part 3.” EUtopia Law. 26 Oct. 2011. Web.

106.
to these different parties has not tangible effect in the present, it may very well change by

parliamentary discretion in the future, or if the Court determines that the Parliament overstepped

the definite, albeit limited, boundaries set forth in the Greece Bailout decision.

The European Stability Mechanism I Decision

Indeed, many of the objections presented in this most recent case – the constitutional

complaints that seek an injunction on the implementation of the ESM – revolve around these very

issues. The petitioners in this case held that several structural issues and vague provisions of the

Treaty Establishing the European Stability Mechanism infringed upon these limits set forth by the

FCC in the Greece Bailout decision, and thus violated the same constitutional articles invoked in

that case – Articles 38.1, 20.1, and 20.2 in conjunction with Article 79.3.261 Specifically, the

complainants had issue with: (i) Article 136.3 of the Treaty on the Functioning of the European

Union, which they argue fundamentally changes the nature of European integration;262 (ii) the

penalties for non-payment, which include removal of voting rights and thus completely remove

Parliament from the decision-making process;263 (iii) the unclear “inviolability” granted to the

members of the ESM Board of Directors and ESM documents, and whether this “inviolability”

excluded national parliaments from having access to necessary information;264 (iv) the lack of

elaboration on the part of the Bundestag and the Bundesrat in participating within the structure of

22 Feb 2013. <http://eutopialaw.com/2011/10/26/the-german-constitutional-court-versus-the-eu-self-

assertion-in-theory-and-submission-in-practice-%E2%80%93-euro-aid-and-financial-guarantees-part-3/>.

Yet if the Court is not in a position to immediately determine the consequences of such contributions, is it
not in its interest to leave that question to the legislature, at least in the interest of remaining outside of
politics? Given the uncertainties at the time, the Court did lay down some constitutional limits on the
transfer of budget autonomy that the Parliament may not cross. Whether or not the FCC holds Parliament
to these conditions remains the subject of future cases, which is elaborated in the discussion of the
European Stability Mechanism decision below.
261
BVerfG, 2 Bvr 1390/12, 12 Sept. 2012, at 146. See supra, note 253 for the topic areas of these cited
Articles. All citations in this decision are with reference to the paragraph numbers of German original, as
the English translation contains only excerpts from the decision.
262
Ibid, at 149.
263
Ibid, at 156.
264
Ibid, at 157.

107.
the ESM;265 and (v) the seemingly permanent nature of the institution, and by extension the lack

of an exit-option or termination of the agreement.266 Given that the constitutional complaint was

posed as an injunction, the petitioners highly recommended that the Court seriously consider its

evaluation of the complaints, given that, should the FCC later find the statutes unconstitutional

after the ESM Treaty is ratified, it would necessarily be in violation of international law in

disregarding the binding effect of the treaty.267

In deciding on this difficult case, the Court first addressed the issue of the injunction, and

how this form of constitutional complaint posed a challenge. Since issues for temporary

injunctions require relatively immediate responses, the Court did not have its typical measures for

delaying the decision in order to thoroughly evaluate the structure of the ESM.268 Either the FCC

had to immediately declare the ESM Treaty unconstitutional in response to the injunction, or

deny the injunction, ruling on the constitutionality of the treaty at a later date. In the introduction

to the decision, the Court noted that it would proceed with the latter option, setting a final

decision on the ESM treaty for a later date, and ruling the merits of the injunction as unfounded

unless in the case that the consequences of not adopting the injunction manifestly outweigh the

alternative.269 Regarding the specific complaints in the petition, then, the FCC would consider

each concern in turn and determine whether an interpretation or understanding exists that keeps

the challenged provision consistent with the constitution, reserving a more systematic ruling on

the specifics of the complaints for a later time.270

265
Ibid, at 160.
266
Ibid, at 165.
267
Ibid, at 166.
268
Recall from the second chapter, Justice Dieter Grimm accounts for how the FCC normally puts a case
on the bottom of its docket as a means to delay deciding on the issue, either due to the complexity of the
issue or the political climate of the time.
269
Ibid, at 191.
270
Ibid, at 191, 240. The follow-up decision was expected in early 2013. However, to date, such a
decision has not yet been made.

108.
 In addressing whether the principle of democracy sets “a justiciable limit of the

assumptions of payment obligations,” the FCC again left the Parliament to evaluate these

boundaries, as it had done in the Greece Bailout decision.271 In restating this position of

negotiating with the Parliament, the Court echoes the opinions of its previous ruling, while

orienting them towards the riskier nature of the ESM commitments:

When examining whether the amount of payment obligations and commitments

to accept liability will result in the Bundestag relinquishing its budget autonomy,

the legislature has broad latitude of assessment, in particular with regard to the

risk of payment obligations and commitments to accept liability being called

upon and with regard to the consequences them to be expected for the budget

legislature’s freedom to act; the Federal Constitutional Court must in principle

respect this latitude.272

In essence, the German Court reaffirmed its earlier position. It also, more implicitly, brought to

light the hard lines it had established in the earlier decision – prohibitions against “imprecise

budgetary authorisations,”273 and “permanent mechanisms… which are tantamount to accepting

liability for the decisions by free will of other states”274 – that would represent “a manifest

overstepping of extreme limits” for which the Court would intervene.275

Having establishing this scope of interpretation for this summary ruling, the FCC

proceeded to address the specific complaints on the structure of the ESM, noting whether there

was an interpretation of these provisions that was consistent with the constitution. In regarding

the allegations that the ESM treaty changes the nature parliament’s participation in EU

integration, and thus violates Art. 79(3) of the Basic Law, the Court cited the Maastricht decision

271
Ibid, at 216.
272
Ibid, at 217.
273
See supra, note 256.
274
See supra, note 257.
275
BVerfG, 2 Bvr 1390/12, 12 Sept. 2012, at 216.

109.
in order to argue that the conception of a monetary union is the product of necessarily political

decisions over time.276 From here, the Court noted that “[i]t is for the legislature to decide how

possible weaknesses of the monetary union are to be counteracted by amending European Union

law.”277 So long as these decisions and corresponding structural changes maintain parliamentary

representation, and by extension the democratic process, they are not in violation of Art. 79(3).

The Court further pressed upon the allegations that the treaty changes the nature of EU

integration by addressing the relationship between the European Central Bank (ECB) and the

ESM. A worry raised by the petitioners concerned the potential of the ECB to begin buying

bonds from the ESM, or the secondary market, and thus crossing into the territory of Kompetenz-

Kompetenz prohibited by earlier FCC decisions.278 In response to these concerns, the Court made

an understanding that “the Treaty can only be taken to mean that it does not permit such

borrowing obligations.”279 However, since the treaty brings forth many new questions

concerning the ECB’s role in the financial crisis, this topic will likely see much further discussion

in the Court’s main decision.280

In addressing the seemingly permanent nature of the institution through the treaty, the

German Court was forced to make its first understanding in the decision. Since the Greece

Bailout decision established any permanent institutions as one of the extreme limits over which

Parliament cannot cross, the Court was forced to interpret that the completion of all

predetermined payments represented the entirety of Germany’s commitment arising from the

276
Ibid, at 222, where the Court cites: BVerfG 89, 155, at 205.
277
Ibid.
278
Dr. Gunnar Beck presents a developed analysis of the issue. While the post has a slant, and he remains
skeptical that the FCC would call the ECB out should they cross that line, the outline of the issue is
nonetheless compelling, and will likely emerge in the main ruling on the ESM. See supra, note 214, for
citation of the article. For an outline of the ECB bond-buying program, see also: Lombardi, Domenico.
“IMF + ECB = OMT.” Brookings Institute. Nov. 2012. Web.
<http://www.brookings.edu/research/articles/2012/11/imf-ecb-lombardi>.
279
BVerfG, 2 Bvr 1390/12, 12 Sept. 2012, at 276.
280
Dr. Beck argues this point, as well as the coverage of the decision authored by The Guardian. See:
Connolly, Kate. “Angela Merkel hails German court’s ruling on Eurozone rescue fund.” The Guardian.
12 Sept. 2012. Web. 2 Mar. 2013. < http://www.guardian.co.uk/world/2012/sep/12/merkel-court-eurozone-
rescue-fund>.

110.
treaty.281 Specifically, to maintain Parliament’s role in any changes to the ESM commitments,

the Court held that the ESM Treaty “may only be interpreted or applied in such as way that no

higher payment obligations are established for the Federal Republic of Germany. The Federal

Republic of Germany must clearly express that it cannot by bound by the Treaty… in its entirety

if the reservation made by it should prove to be ineffective.”282 Should any further arrangements

be necessary, the Bundestag would need to fully approve of any proposed increase in Germany’s

contribution, a measure designed to mitigate the unclear relationship between the Bundestag and

the ESM raised by the complainants.283

With regard to the unclear “inviolability” afforded to the ESM Board and its documents

under Articles 32(5), 34, and 35(1) of the treaty, the FCC was forced to make another

understanding. While these sections of the treaty did not include national parliaments as parties

to receive full information regarding the operations of the ESM, the Court pointed out that the

articles do not explicitly exclude them either.284 In rendering an interpretation consistent with the

constitution, the Court then established an understanding on this topic that assumes that these

provisions would not exclude national parliaments from attaining full information necessary in

order to make informed decisions regarding its commitments to the ESM.285

To decide on the proposed voting ban in the ESM Treaty, the FCC made a rather simple

interpretation of the issue. While acknowledging that a ban Germany’s representation in the

ESM would run contrary to the Basic Law, the Court also argued that such a ban would be a

nonissue if the Bundestag fulfills its commitments.286 In this sense, the Court leaving the issue up

to the Parliament’s assessment of its ability to make necessary payments in a timely manner.

Even in the event that capital calls under Articles 8(2) and 9 of the ESM Treaty puts the German

281
BVerfG, 2 Bvr 1390/12, 12 Sept. 2012, at 244.
282
Ibid, at 253.
283
Ibid.
284
Ibid, at 257.
285
Ibid, at 259.
286
Ibid, at 261-263.

111.
payment schedule ahead of par,287 or in the case that unforeseen domestic commitments alter the

national budget, the Court nonetheless notes that “[i]f necessary, the Federal Government and the

Bundestag have to make arrangements in a timely manner to avoid a suspension of voting

rights.”288

In summation of these understandings, the Court rejected the injunction, subject to three

stipulations. First, the specific merits of the constitutional complains and the constitutionality of

the ESM Treaty were to be decided in a main proceeding, with the decision to be issue in the

early months of 2013. Secondly, Article 8(5) of the treaty limits the payment obligations to the

amount of €190,024,800,000 euros, and that no higher obligations may be established without full

consent of the Bundestag. Finally, the provisions on the inviolability of the ESM Board or its

documents are not to be interpreted to prevent the Bundestag and Bundesrat from having full

information on ESM operations.289

Evaluating the Court’s Position in European Stability Mechanism I

As alluded to in the introduction, the evaluation of this judgment on the part of the Court

has been decisively split. While German politicians and economists from Angela Merkel’s CDU

and the party leader for the SPD all praise the decision as demonstrating Germany’s commitment

to Europe, several smaller parties and many legal scholars still retain their concerns.290 All

287
As the Court outlines in its understanding of the Treaty, Articles 8(2) and 9 of the treaty, capital calls
may push the payment schedule above par in the event that other members cannot make their obligations in
a timely manner, or become insolvent. Such measures are meant to maintain the creditworthiness of the
ESM. See Ibid, 42 and 45-49. In a sense, the Court is deferring to Parliament’s assessment to pay any
portion of the lump sum on demand, given that capital calls do not exceed the €190 billion maximum.
288
Ibid, at 270
289
These conditions can be found under the “Urteil” of the decision, or within any news coverage of the
judgment. See, for example: Beck, 22 Sept. 2012; Connelly, 12 Sept. 2012; or see supra, note 211.
290
Many reactions to and opinions regarding the ESM decision can be seen on the to-the-minute coverage
of the decision, found at: Wearden, Graeme. “German court approves bailout fund, with conditions -
eurozone crisis as it happened.” The Guardian. 12 Sept. 2012. Web. 30 Jan. 2013.
<http://www.guardian.co.uk/business/2012/sep/12/eurozone-crisis-german-court-bailout-fund >.

112.
parties involve agree that the decision represents one of the most important rulings in the history

of the Bundesverfassungsgericht. Many critics of the decision claim that the Court wrote a blank

check to EU integration, or that it succumbed to the political pressures ushered in by the urgency

of the injunction.

With a framework having been evaluated the Court’s jurisprudence from the lens of

constitutional negotiations, I argue that neither of these accusations are true, and that the ESM

decision falls in line with the German Constitution, as developed by previous jurisprudence on

the integration of the European Union. In the context of the ruling, this point is demonstrated by

the parties to which the Constitutional Court opens negotiations, which is indicative of

consistency towards previous judgments on the issue.

In European Stability Mechanism I, the Constitutional Court maintained two forms of

negotiation. By splitting the decision into two stages, and holding a high standard for the

granting of an injunction to ratification of the ESM Treaty, the Court was certainly giving an

ideological approval to the process of European integration. Favoring the establishment of

institutions to promote European stability, in the face of uncertainty, carries vestiges of the same

conflicts faced in Maastricht and Lisbon. Indeed, the acceptance of some uncertainties regarding

the political organization, which had first emerged as a key concern in Maastricht, informed the

Court when ruling on aspects of the constitutional complaints against the ESM.291 In the face of

the urgency of an injunction, the Court essentially appeared ready to accept the financial

uncertainties and risks that come with contributing to the ESM, just as the Court seemed to

embrace the uncertainties of a monetary union in the first place. Such a continuation of a

commitment to European integration does not represent a succumbing to political pressure.

Rather, it represents a continued commitment to European integration under Article 23.1 of the

Basic Law, first cited in Maastricht and then later strengthened in Lisbon.

291
See supra, note 275, where the Court even cites Maastricht in this regard.

113.
 On the other hand, given the level of specificity and development that European

institutions and treaties have attained, the Court was not ready to write a blank check allowing

unconditional transfers of sovereignty. In fact, as the Greece Bailout decision showed, when the

more practical question of whether further transfers of sovereignty serve to violate national

autonomy, the Court chose to specifically allow the Bundestag and Bundesrat to fill in the blanks

on that issue.292 The FCC intentionally called Parliament out to determine at what specific point

contributions to Eurozone undermine budgetary autonomy. At the same time, the Court ensured

to establish hard lines past which the legislature may not cross, such as the need for bailout

institutions to be sufficiency precise and temporary.293

As the presentation of the ESM decision shows, the Court allowed for each of these

aspects in its striking down of the injunction – it simultaneously left Parliament to answer the

question regarding the specific concerns of transferring sovereignty, and ensured that the ESM

treaty could be interpreted to be sufficiently precise and temporary, all while confirming the

ideological commitment to European integration under Article 23.1 of the Basic Law. In

mitigating the concerns of the amount committed to the ESM, the Court cited the same

consideration that it had left to the Parliament that it had in Greece Bailout. When responding to

complaints concentrating on the vagueness of various provision in the ESM Treaty, the FCC

supplemented the challenged sections with understandings that were compatible with the

constitution, making the treaty sufficiently precise. To dispel concerns that an institution such as

the ESM represents a commitment of a permanent nature, the Court made certain that, barring

parliamentary approval, Germany’s commitment to the ESM was to end once the agreed amount

292
One can argue, and indeed Gunnar Beck does argue, that deferring to Parliament effectively means the
same as deferring to EU integration (see supra, note 259). As the ESM decision showed, the FCC does
indeed defer to both parties. Yet in also deferring to Parliament, the Court was also charged with ensuring
that the ESM followed the hard limitations set in Greece Bailout, a task that the Court accomplished with
its reservations and understandings. If deferring to Parliament were completely the same as deferring to
EU integration, the judgment would have necessarily lacked these limitations.
293
See supra, notes 256-257.

114.
had been fully provided. All of these steps were made under an ideological commitment to

integration, established in Article 23.1 of the Basic Law and developed in Lisbon and Maastricht.

Thus, an account that fully acknowledges both the jurisprudence of the German Court and the

parties with which the Court has negotiated over time cannot see this controversial decision as the

product of political pressures, but rather the continuation of a commitment to the constitution, and

its simultaneous protection of both national sovereignty and European integration.

Characterizing German Deference in Comparative Context

Given this account of the Court’s ongoing relationship with EU integration, it is clear that

the progression represented a negotiation over the rights contained in Articles 23.1 and Article

38.1 of the Basic Law. Indeed, as Dr. Gunnar Beck notes, the Court’s “attitude to date has been

that, with each further step towards the surrender of additional national powers and budgetary

resources, the concentric circles of national sovereignty have drawn ever closer to the

indispensable core of inalienable national sovereignty and identity which the FCC has eloquently

invoked but imprecisely defined.”294

The process of negotiation in the German case is perhaps the most simple of the case

studies examined since, as had been argued though the course of the chapter, the FCC maintained

a rather consistent position with regard to EU integration, treading a delicate balance between

demands Articles 23.1 and 38.1 of the Basic Law, with the policies of the other branches of

government in EU integration seeming to be at odds with the concerns of citizens. When faced

with the constitutional complaints over the theoretical concerns of the Maastricht Treaty, the

German Court responded in an equally theoretical manner, allowing for the treaty while noting

generally that the Bundestag and Bundesrat must have input of “substantial import.” As

294
Beck, Pt. 3.

115.
integration furthered under the proposed Lisbon Treaty, the Court reaffirmed a stronger, now

required, commitment to EU integration, while simultaneously granting more elaborated means

of monitoring the process through ultra vires and identity review.

As integration of the EU turned to more practical terms, so did the rulings of the FCC.

When the case over the bailout of Greece questioned sovereignty in monetary terms, via the

consideration of budgetary autonomy, the Court split the audience with which it negotiated.

While empowering the legislature to determine a specific limit, the Court set hard lines on

commitments to Eurozone stability institutions. In a sense, the Court, in ruling on this case, used

its last word on the issue to empower the German Parliament to, in using its capacity to know and

shape the budget, negotiate the specific limits of financial contribution to EU institutions. The

Court continued down this path in the ESM I decision, as evidenced by the understandings made

on the ESM Treaty that echo the ruling on the Greece Bailout case.

The more straightforward development of German jurisprudence on EU integration

distinguishes it from the Italian and Canadian cases, which have on occasion required the

intervention of peripheral actors in order to resume negotiations on the relevant issues. This

distinguishing factor may very well change when the German Court gives consideration to the

ECB bond-buying program that became an implicit possibility under ESM Treaty, yet was

understood as unconstitutional by the FCC. This topic will likely be one of the main focuses of

the upcoming ESM II decision.

To date, there is no official record of the ECB having engaged in bond-buying within the

secondary market, yet accounts note that German opposition to the idea would not deter the ECB

from implementing these Outright Monetary Transactions (OMTs).295 These same accounts note

that the OMT program is currently in a “standby mode,” and the ECB has thus not exhibited a

295
Carrel, Paul and Sarah Webb. “Analysis: ECB bond-buying may be moving from deterrence to stand-
by.” Reuters. 15 Mar. 2013. <http://www.reuters.com/article/2013/03/15/us-ecb-bonds-
idUSBRE92E0IF20130315>.

116.
form of Kompetenz-Kompetenz that would be unconstitutional in Germany.296 Should the

program be implemented in response to Eurozone crises, it would appear that the Court’s decision

in ESM I would retroactively develop a comparison to the American experience, in which the

Court decided its unconstitutional character in the abstract, yet allowed the ESM Treaty to remain

insufficiently defined so as to allow the practice to occur on the ground. Whether this situation

should come about, however, is necessarily speculation.

296
Ibid.

117.
 Constitutional Negotiation and Judicial Review

Good constitutions are formed upon a comparison of the liberty of the individual
with the strength of government: If the tone of either be too high, the other will be
weakened too much. It is the happiest possible mode of conciliating these objects,
to institute one branch peculiarly endowed with sensibility, another with knowledge and
firmness. Through the opposition and mutual control of these bodies, the government
will reach, in its regular operations, the perfect balance between liberty and power.

– Alexander Hamilton, 25 June 1788

To put this comparative examination into perspective, perhaps it would be beneficial to

return to some of the cases examined at the very beginning of this inquiry. Recall that, despite

many critics claiming Roe v. Wade as having been an activist move on part of the Supreme Court,

in reality the state legislatures subsequently exerted their monopoly over implementation in

enacting regulations that set prohibitive requirements on a right that, according to the Court,

could never be criminalized.

As this thesis has argued, such instances show that viewing judicial review as either

activist or restrained misses the negotiation that occurs between the courts and other political

actors. Rather than being seen as unequivocally deciding the final interpretation of a

constitutional provision, judicial review on the part of courts is better conceived as part of an

ongoing process, one which has elaborated, and will continue to elaborate, how a constitutional

provision is to be interpreted, and how these provisions relate to and may be open to other

compelling government interests. Rather than centering on singular decisions of courts, debates

over the power of high courts should recognize that complex constitutional matters are often

developed over a sequence of cases, often interspersed with the actions of other political actors.

As the case studies have shown, this example with Roe v. Wade is far from an anomaly.

This phenomenon has occurred over important constitutional issues in various constitutional

democracies. The examination of secondary research into common law systems has shown that

existing theories on sustained judicial review, “judicial dialogue” in Canadian jurisprudence and

118.
“new deference” of the US Supreme Court, lend themselves to being reducible to “constitutional

negotiation” as a more generalized conception of these jurisprudences.

Meanwhile, the Italian Court has wrestled with the concept of parliamentary immunity,

realized in theory under Articles 90 and 96 of the Italian Constitution, while being

unconstitutionally implemented by the Berlusconi regime. Negotiation over this issue occurred

on two levels. On one level, the Court, having struck down immunity laws passed by the center-

right coalition, acknowledged the existence of possible “legitimate impediments” to appearing in

trial due to the duties involved in holding office, yet empowered the judiciary to determine

whether an actual impediment actually exists. On a practical level though, the Court’s failure to

shift its competencies to address the underlying problem, Italy’s unique statute of limitations, has

resulted in Berlusconi not having seen a single binding conviction. However, with the emergence

of social movements and NGO inquiries into Italy’s statute of limitations, opposing political

parties have championed platforms focusing on judicial reform, resulting in a potential end to

Berlusconi’s control over the legislature.

In the German context, the Federal Constitutional Court, in its continued jurisprudence on

European integration, has treaded a thin line between two interests that were both compatible

with the Constitution. On one hand, Article 23.1 creates a mandate for the realization of a unified

Europe that has pressed government policy towards greater EU integration. Yet citizen concerns

over the democratic character of Parliament under Article 38.1 has caused the Court to focus on

whether each step of the integration process would constitute an undue transfer of national

sovereignty. Over time, this question become specifically tied to the budgetary autonomy of the

German legislature, and thus the Court began to empower Parliament to act as a party of

negotiation over what constitutes national sovereignty in the European context.

119.
 Evaluating Constitutional Negotiation

As this sustained examination over four constitutional democracies has shown,

constitutional negotiation is a way of conceiving judicial review such that the Court’s

competencies complement those of other political actors in order to gradually develop and

elaborate a constitutional provision, along with its potential qualifications and modes of

implementation. Such a phenomenon occurs across legal traditions, and over provisions related

to important political issues.

To evaluate the soundness of constitutional negotiation as a theory, it would be prudent to

consider some possible objections that could be posed against this formulation of judicial review.

Doing so would render the theory much more robust, and would serve to motivate further study

into the phenomenon.

One potential objection may accuse “constitutional negotiations” as implicitly harboring

some from of skepticism over the ability to reach a clearly defined, final version of a

constitutional provision. Such a notion would be supported by the fact that the framework for

negotiations seems to allow an infinite amount of interactions between the legislature and

judiciary, as well as with periphery actors should that apply.

While the framework for constitutional negotiation does allow an undefined number of

elaborations over time, it must be noted that these elaborations occur with respect to concrete

interpretations of the provision and concrete qualifications that may potentially serve to limit said

provision. While the final policy may not be clear, the possible forms that the constitutional

provision – complete with its qualifications – may take with each Court decision is a set of

discrete alternatives. In some cases, further negotiation may be continually working towards a

single policy, as with the German case. Successive cases on EU integration, as Dr. Beck noted,

gradually drew the concentric circles of national sovereignty to a set of core considerations. On

120.
that note, it would seem that negotiation works to define discrete answers, not move away from

them.

Another potential line of argument that would work against “constitutional negotiation”

would focus on whether it is a morally desired alternative. In particular, one could note the

length of time it took the US Supreme Court to develop a constitutional right to habeas corpus, or

for the periphery actors in the Italian system to mobilize and shift the other political parties

against the Berlusconi regime. As these negotiations occurred, basic principles of justice were

being continually infringed upon. While Guantánamo detainees remained in solitary confinement

as the government branches hammered out the details of habeas rights, Berlusconi still maintains

impunity while judicial and social actors strive to reform the flawed statute of limitations. In

allowing these things to occur, could one call “constitutional negotiation” a better alternative?

In responding to this objection, it is first necessary to note that the exploration of

constitutional negotiation was largely descriptive, focusing on matching characteristics of each

country’s jurisprudence to the process outlined in the introductory chapter. With few exceptions,

the thesis remained outside the realm of what constitutes “justice,” being more focused on what

constituted “practice.” Nevertheless, a simple way of responding to this objection is to enter

constitutional negotiation as an alternative to the extremes – judicial activism and judicial

restraint – and their respective concerns. Do the minor, yet potentially consistent, infringements

of provisions that occur in practice while the content of constitutional provisions is being

negotiated outweigh the gross injustices that could occur under a “tyranny of the majority” or a

“rule by judges” system? That question may be one that is best left to the moral philosophers.

Perhaps another way to phrase this approach involves considering the extent to which

“constitutional negotiation” renders constitutional jurisprudence as either more or less

democratic. As a moderate position in between judicial activism and judicial restraint, this

conception of judicial review as a step in “constitutional negotiation” definitely recognizes the

merits of democratic legitimation. In recognizing that subsequent legislation can temper even the

121.
most sweeping of high court decisions, the process of constitutional negotiation values the extent

to which democratic institutions possess the capacity to invoke deliberative processes in order to

arrive at informed policy. On the other side, however, negotiation also recognizes that

democracy as a value is subject to limitation. In allowing for judicial review of legislation,

constitutional negotiation also values the extent to which judiciaries possess the capacity to

maintain a consistent respect for constitutional laws, ensuring that democratic governance does

not reduce itself to a tyranny of the majority. Thus, “constitutional negotiation” sees

jurisprudence and democratic governance as in a symbiotic – even if not completely cooperative

– relationship, in that both sets of institutional capacities are required in order to best realize the

fullest interpretation and implementation of a constitutional provision.

Questions for Further Research

In formulating another way of conceiving judicial review, one of the more implicit goals

of this thesis was to motivate further research on the constitutional negotiations that take place

between political actors within democratic orders.

Does “constitutional negotiation” as a conception of judicial review apply to other

constitutional democracies? This question remains the most obvious means for further research.

While further case studies would most likely start out within common law or civil law systems, it

would be interesting to see if this dynamic applies to systems outside of these traditions that still

honor a separation of powers.

Does “constitutional negotiation” require a constitution? Related to the last point, it

would be interesting to see if “constitutional negotiation” could be simply reduced to “rights

negotiation.” Such an examination would clearly start with the United Kingdom, as the country

does not have an “official” constitution, and studies have already confirmed some dynamics

122.
similar to those seen in this thesis.297 Though such approaches should necessarily venture outside

of traditional systems, to see if this practice applies to different systems of governance.

What role has the growth of trans-judicialism played in securing a convergence over this

process? This question would be particularly interesting to take up in more detail. The scope of

this exploration only concerned how international actors may act as periphery agents within the

process of constitutional negotiation. A more pointed approach to examining this inquiry would

be to question the extent to which the growth of trans-national judicial networks has caused

national judges to continually rule on the more active side of the negotiative process, and to be

less willing to allow qualifications of fundamental rights.

297
Specifically, Scheppele notes how the UK practiced a comparable form of “new deference” in response
to concerns arising from terrorism and national security. See: Scheppele (2012), at 89.

123.
 Appendix – The Model of Constitutional Negotiation

This figure depicts the model of constitutional negotiation outlined in the introductory chapter.

The dashed arrows represent actions that may occur, yet are not required for negotiation to have

taken place.

124.
 Bibliography

“A Brief Overview of the Supreme Court.” Supreme Court of the United States. 30 Mar. 2013.

<http://www.supremecourt.gov/about/briefoverview.aspx>.

“About ESM.” European Stability Mechanism. 25 Mar. 2013. <http://www.esm.europa.eu/

about/index.htm>.

Arie, Sophie. “Berlusconi Trial Outcome Delayed for Years by Court.” The Guardian. 17 May

2003, Web, 16 Feb. 2013. <http://www.guardian.co.uk/media/2003/may/17/

citynews.silvioberlusconi>.

Barak, Aharon. “The Role of a Supreme Court in a Democracy.” Harvard Law Review. Vol

116(1): Nov. 2002, pp. 19-162.

“Basic Law for the Federal Republic of Germany.” Deutscher Bundestag. 2010.

<https://www.btg-bestellservice.de/pdf/80201000.pdf>.

“BC Motor Vehicle Reference.” 2 SCR 486 (1985), The Supreme Court of Canada. 17 Dec.

1985. Lexum. Web. < http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-

csc/en/item/100/index.do >.

Beck, Gunnar. “The German Constitutional Court no longer takes itself seriously, but Germans

still believe in the Bundesbank.” EUtopia. 22 Sept. 2013. Web. 4 Feb. 2013.

<http://eutopialaw.com/2012/09/22/the-german-constitutional-court-no-longer-takes-

itself-seriously-but-germans-still-believe-in-the-bundesbank/#more-1477>.

____________ “The German Constitutional Court versus the EU: self-assertion in theory and

submission in practice – Euro Aid and Financial Guarantees, Part 1.” EUtopia Law. 24

Oct. 2011. Web. 12 Jan. 2013. <http://eutopialaw.com/2011/10/24/%E2%80%9Cthe-

german-constitutional-court-versus-the-eu-self-assertion-in-theory-and-submission-in-

practice-%E2%80%93-euro-aid-and-financial-guarantees-part-1/>.

125.
____________ “The German Constitutional Court versus the EU: self-assertion in theory and

submission in practice – Euro Aid and Financial Guarantees, Part 2.” EUtopia Law. 25

Oct. 2011. Web. 13 Jan. 2013. <http://eutopialaw.com/2011/10/25/the-german-

constitutional-court-versus-the-eu-self-assertion-in-theory-and-submission-in-practice-

%E2%80%93-euro-aid-and-financial-guarantees-part-2/>.

____________ “The German Constitutional Court versus the EU: self assertion in theory and

submission in practice – Euro Aid and Financial Guarantees. Part 3.” EUtopia Law. 26

Oct. 2011. Web. 22 Feb 2013. <http://eutopialaw.com/2011/10/26/the-german-

constitutional-court-versus-the-eu-self-assertion-in-theory-and-submission-in-practice-

%E2%80%93-euro-aid-and-financial-guarantees-part-3/>.

Bingham, Thomas. The Rule of Law. London: Penguin Publishers, 2010.

“Bourmediene v. Bush.” 553 U.S. (2008), The Supreme Court of the United States. 12 Jun.

2008. Legal Information Institute of Cornell University Law School. Web.

<http://www.law.cornell.edu/supct/html/06-1195.ZS.html>.

“Bowers v. Hardwick.” 478 U.S. 186, The Supreme Court of the United States. 30 Jun. 1986.

Justia. Web. <http://supreme.justia.com/cases/federal/us/478/186/case.html>.

“Burnet v. Coronado Oil & Gas Co.” 285 U.S. 393, The Supreme Court of the United States. 11

Apr. 1932. Justia. <http://supreme.justia.com/cases/federal/us/285/393/>.

Carrel, Paul and Sarah Webb. “Analysis: ECB bond-buying may be moving from deterrence to

stand-by.” Reuters. 15 Mar. 2013. <http://www.reuters.com/article/2013/03/15/us-ecb-

bonds-idUSBRE92E0IF20130315>.

Cecci de Rossi, Martina. “Elezioni 2013, Mario Monti rassicura Pier Luigi Bersani

sull'antiberlusconismo ma rilancia la sfida sui programmi.” L’Huffington Post. 9 Jan.

2013. <http://www.huffingtonpost.it/2013/01/09/elezioni-2013-mario-

monti_n_2441331.html>.

126.
Center for Reproductive Rights. “Defending Human Rights: Abortion Providers Facing Threats,

Restrictions and Harassment.” Center for Reproductive Rights. 2009. Web.

<http://reproductiverights.org/sites/crr.civicactions.net/files/documents/DefendingHuman

Rights_0.pdf>.

Cerasi, Francesco, Bruno Giuffré, and David Maria Marino. “Italy: Constitutional Court Rejects

Mandatory Mediation.” DLA Piper. 24 Oct. 2012. Web. 17 Feb. 2013. <http://www.

dlapiper.com/italy-constitutional-court-rejects-mandatory-mediation-10-24-2012/>.

“Charkaoui v. Canada.” 1 SCR 350 (2007), The Supreme Court of Canada. 26 Jun. 2008. Lexum.

<http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/5482/index.do>.

Connolly, Kate. “Angela Merkel hails German court’s ruling on Eurozone rescue fund.” The

Guardian. 12 Sept. 2012. Web. 2 Mar. 2013. <http://www.guardian.co.uk/world/

2012/sep/12/merkel-court-eurozone-rescue-fund>.

“Constitution Acts, 1867 to 1982.” Justice Laws Website. 15 Mar. 2013. <http://laws-

lois.justice.gc.ca/eng/Const/page-15.html>.

“Constitution of the Italian Republic.” Senato della Repubblica Italiana. Dec. 2012. Web.

<http://www.senato.it/documenti/repository/istituzione/costituzione._inglese.pdf >.

“Constitution of the United States.” National Archives. 2013. <http://www.archives.gov/exhibits/

charters/constitution_transcript.html>.

“Costituzione della Repubblica Italiana.” Senato della Repubblica Italiana. Dec. 2012. Web.

<http://www.senato.it/documenti/repository/istituzione/costituzione.pdf >.

Coretti, Lorzeno. “The Purple Movement: An Overview of Berlusconi’s Italy through the lenses

of Social Movement Theory.” Communication Management Quarterly. Vol. 22: 2012,

pp. 5-34.

Daly, Paul. “Deference on Questions of Law.” Modern Law Review. Vol.74(5):2011, pp.694-720.

“Declaration of Andrea Prasow, Assistant Detailed Defense Counsel to Salim Hamdan.” Military

Commission, United States v. Hamdan. 1 Feb. 2008. Web.

127.
 <http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-

project/testimonies/testimomies-of-lawyers/prasow_hamdan_declaration.pdr.pdf>.

“Doe v. Bolton.” 410 U.S. 179, The Supreme Court of the United States. 22 Jan. 1973. Justia.

Web. <http://supreme.justia.com/cases/federal/us/410/179/case.html>.

Donadio, Rachel. “Berlusconi is Found Guilty of Tax Fraud.” The New York Times, 26 October

2012. <http://www.nytimes.com/2012/10/27/world/europe/berlusconi-convicted-and-

sentenced-in-tax-fraud.html>.

Duncan, Kennedy. “Purple People Challenge Berlusconi.” BBC News. 13 Mar. 2010.

<http://news.bbc.co.uk/2/hi/europe/8565265.stm>.

Dworkin, Ronald. A Matter of Principle. Cambridge: Harvard Univ. Press, 1985.

____________ Taking Rights Seriously. Cambridge: Harvard Univ. Press, 1977.

“È una sentenza politica.” Corriere TV. 26 Oct. 2012. Web. 14 Feb. 2013.

<http://www.corriere.it/politica/12_ottobre_26/berlusconi-mediaset-condanna_73c09698-

1f76-11e2-8e43-dbb0054e521d.shtml>.

Eliantonio, Mariolina, and Sascha Hardt. “Thou Shalt be Saved (from Trial)? The Ruling of the

Italian Constitutional Court on Berlusconi’s Immunity Law in a Comparative

Perspective.” European Constitutional Law Review. Vol. 7 (2011): pp. 17-39.

Elliot, R. Douglas. “Judicial Activism and the Threat to Democracy.” University of New

Brunswick Law Journal. Vol. 53, 2004, pp. 199-204.

Elsea, Jennifer. “The Military Commissions Act of 2006: Analysis of Procedural Rules and

Comparison with Previous DOD Rules and the Uniform Code of Military Justice.”

Congressional Research Service, RL 33688, 2007. Web.

<http://www.fas.org/sgp/crs/natsec/RL33688.pdf>.

“Europäischen Stabilitätsmechanismus I.” BVerfG, 2 Bvr 1390/12, Das

Bundesverfassungsgericht. 12 Sept. 2012. Das Bundesverfassungsgericht. Web.

<http://www.bundesverfassungsgericht.de/entscheidungen/rs20120912_2bvr139012.html>.

128.
Fisher, Louis. “Military Tribunals: The Quirin Precedent.” Congressional Research Service, RL

31340, 26 Mar. 2002. <http://www.au.af.mil/au/awc/awcgate/crs/rl31340.pdf>.

“Flaminio Costa v. ENEL.” ECR 585 (1964), The Court of Justice of the European

Communities. 15 Jul. 1964. EUR-Lex. <http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61964CJ0006:EN:PDF>.

Gardbaum, Stephen. “The New Commonwealth Model of Constitutionalism.” American Journal

of Comparative Law. Vol. 49: 2001, pp. 707-760.

“Gazzetta Ufficiale N. 81 del 8 Aprile 2010.” Aesinet. 2010. Web.

<http://gazzette.comune.jesi.an.it/2010/81/1.htm>.

“Gazzetta Ufficiale N. 173 del 25 Luglio 2008.” Aesinet. 2008. Web.

<http://gazzette.comune.jesi.an.it/2008/173/1.htm>.

“German Parliament Approves 2013 Budget Despite Risk to Deficit.” Bloomberg. 23 Nov.

2012. Online. 21 Feb. 2013. <http://www.bloomberg.com/news/2012-11-23/german-

parliament-approves-2013-budget-amid-risk-to-deficit.html>.

“Greece Bailout.” BVerfG 2 BvR 987/10, The Federal Constitutional Court of the German

Republic. 7 Sept. 2010. Das Bundesverfassungsgericht. Web. <http://www.bundes-

verfassungsgericht.de/en/decisions/rs20110907_2bvr098710en.html>.

“Green Light for ESM: German Court OKs Permanent Bailout Fund with Reservations.” Das

Spiegel. 12 Sept. 2012. Online. 21 Feb. 2013.

<http://www.spiegel.de/international/germany/german-high-court-oks-permanent-bailout-

fund-with-reservations-a-855338.html>.

“Griechenland-Hilfe.” BVerfG 2 BvR 987/10, Das Bundesverfassungsgericht. 7 Sept. 2010.

Das Bundesverfassungsgericht. Web. <  http://www.bundesverfassungsgericht.de/

entscheidungen/rs20110907_2bvr098710.html>.

Gomez, Peter, and Marco Travaglio. E Continuavano a Chiamarlo Impunità. Rome: Editori

Riuniti, 2007.

129.
Groppi, Tania. “The Italian Constitutional Court: Towards a ‘Multilevel System of Constitutional

Review?” Constitutional Courts: A Comparative Study. Ed. Andrew Harding and Peter

Leyland. London: Willy, Simmonds, and Hill, 2009. Pp. 125-147.

“Guantanamo Pair’s Charges Dropped.” British Broadcasting Company. June 5, 2007,

<http://news.bbc.co.uk/ 2/hi/americas/6720315.stm>.

Guttmacher Institute. “Restricting Insurance Coverage of Abortion”. Guttmacher Institute. 1

Mar. 2013. Web. <http://www.guttmacher.org/statecenter/spibs/spib_RICA.pdf>.

“Hamdi v. Rumsfeld.” 542 U.S. 507, The Supreme Court of the United States. 28 Jun. 2004.

Legal Information Institute of Cornell University Law School. Web.

<http://www.law.cornell.edu/supct/html/03-6696.ZO.html>.

Hogg, Peter W. and Allison A. Bushell. “The Charter Dialogue Between Courts and

Legislatures.” Osgoode Hall Law Journal. Vol. 35(1): 1997, pp. 75-124.

Hogg, Peter W., Allison A. Bushell, Thornton, and Wade K. Wright. “Charter Dialogue

Revisited – Or ‘Much Ado About Metaphors.’” Osgoode Hall Law Journal. Vol. 45(1):

2007, pp. 1-65.

“Hirabayashi v. United States.” 320 U.S. 81, The Supreme Court of the United States. 21 Jun.

1943. Justia. Web. <http://supreme.justia.com/cases/federal/us/320/81/case.html>.

“Index of Bush-Era OLC Memoranda Relating to Interrogation, Detention, Rendition and/or

Surveillance.” American Civil Liberties Union. 5 Mar. 2009.

<http://www.aclu.org/pdfs/safefree/olcmemos_2009_0305.pdf>.

“Internationales Recht in der Verfassungsbeschwerde und in der Grundrechtsordnung.”

Universität Bonn. Web. <http://jura.uni-

bonn.de/fileadmin/Fachbereich_Rechtswissenschaft/Einrichtungen/Lehrstuehle/Oerecht3/

Lehrstuhlinhaber/Die_gemeinschaftsrechtliche_Perspektive_01.pdf>.

130.
“Institute for Transnational Law.” School of Law, University of Texas at Austin. 1 Dec. 2005.

Web. 22 Feb. 2013. <http://www.utexas.edu/law/academics/centers/transnational/

work_new/german/case.php?id=572>.

“The Italian Constitutional Court.” Corte Costituzionale. Feb. 2009.

<http://www.cortecostituzionale.it/ActionPagina_324.do#titolo5_8>.

Jowell, Jeffrey. “Of Vires and Vacuum: The Constitutional Context of Judicial Review.” Public

Law. 1999, pp. 448-460.

Kapur, Sahil. “Chief Supreme Court Justice John Roberts Has A Plan To Keep The Federal Gay

Marriage Plan In Place.” Business Insider. 2 Apr. 2013.

<http://www.businessinsider.com/justice-roberts-has-a-plan-to-keep-doma-2013-4>.

Kelsen, Hans. “La garantie juridictionelle de la constitution.” Revue de Droit Public. Vol.

45(197): 1928.

Kington, Tom. “Silvio Berlusconi Case Thrown Out of Court.” The Guardian. 25 Feb. 2012.

Web. 17 Feb. 2013. <http://www.guardian.co.uk/world/2012/feb/25/silvio-berlusconi-

bribery-case-court>.

Kommers, Donald. The Constitutional Jurisprudence of the Federal Republic of Germany.

Durham: Duke Univ. Press, 2013.

“Korematsu v. United States.” 323 U.S. 214, The Supreme Court of the United States. 18 Dec.

1944. Justia. Web. <http://supreme.justia.com/cases/federal/us/323/214/>.

“Legge 5 dicembre 2005, n. 251.” Parliamento Italiano. 5 Dec. 2005. Web.

<http://www.camera.it/parlam/leggi/05251l.htm>.

“Legge 20 giugno 2003, n. 140.” Parlamento Italiano. 20 Jun. 2003. Web.

<http://www.camera.it/parlam/leggi/03140l.htm>.

“Lisbon.” BVerfG, 2BvE 2/08, Das Bundesverfassungsgericht. 30 Jun. 2009. Das

Bundesverfassungsgericht. Web. <http://www.bundesverfassungsgericht.de/

entscheidungen/es20090630_2bve000208.html>.

131.
Lombardi, Domenico. “IMF + ECB = OMT.” Brookings Institute. Nov. 2012. Web.

<http://www.brookings.edu/research/articles/2012/11/imf-ecb-lombardi>.

Lyman, Eric. “Disgraced Ex-PM Berlusconi Seeks Comeback in Italy.” USA Today. 11 Dec.

2012. Web. 17 Feb. 2013. <http://www.usatoday.com/story/news/world/2012/12/10/

italy-berlusconi-monti/1759417/>.

“Maastricht.” BVerfG 89, 155, Das Bundesverfassungsgericht. 1 Jul. 1993. Servat.unibe.ch

Database. Web. <  http://www.servat.unibe.ch/dfr/bv089155.html>.

MacKenzie, James and Barry Moody. “Italy President Asks Bersani to See if Can Form

Government.” Reuters. 22 Mar. 2013. < http://www.reuters.com/article/2013/03/22/us-

italy-vote-idUSBRE92L0IG20130322>.

“The Man Who Screwed an Entire Country.” The Economist, 9 Jun. 2011. Web.

<http://www.economist.com/node/18805327>.

Mathen, Carissima. “Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on

‘Charter Dialogue Revisited.’” Osgoode Hall Law Journal. Vol. 45(1): 2007, pp. 125-

146.

McMahon, Kevin J. “Notwithstanding the Notwithstanding Clause: Political Regime and

Constitutional Politics in the United States and Canada.” Canadian Foreign Policy. Vol.

12(3): Jul. 2005, pp. 45-52, 54.

Meessen, Karl M. “Hedging European Integration: The Maastricht Judgment of the Federal

Constitutional Court of Germany.” Fordham International Law Review. Vol. 17(3):

1993, pp. 511-530.

“Minersville School District v. Board of Education.” 310 U.S. 586, The Supreme Court of the

United States. 3 Jun. 1940. Justia. Web. <http://supreme.justia.com/cases/federal/us/

310/586/case.html>.

132.
Nadeau, Barbie L. “Italian Political Leaders Hope to Bring Direction to a Government at Sea.”

CNN. 20 Mar. 2013. < http://www.cnn.com/2013/03/20/world/europe/italy-government-

uncertainty>.

Osterhaus, Anja. “Timed Out: Statutes of Limitation and Prosecuting Corruption in EU

Countries.” Transparency International. Nov. 2010. Web. 17 Feb. 2013.

<http://archive.transparency.org/content/download/57085/912315/Statutes+of+Limitation

_web.pdf>.

Povoledo, Elisabetta and Gaia Pianigiani. “Automatic Immunity for Berlusconi Revoked.” New

York Times. 13 Jan. 2011. <http://www.nytimes.com/2011/01/14/world/europe/

14italy.html >.

“Press Release SC/7158.” United Nations. 28 Sept. 2001.

<http://www.un.org/News/Press/docs/2001/sc7158.doc.htm>.

Resta, Eligio. “Diritto Vivente.” Diritto Vivente: Il ruolo innovativo della giurisprudenza. Ed.

Alarico Mariani Marini and David Cerri. Pisa: Pisa Univ. Press, 2007. Pp. 73-83.

Reuters. “Silvio Berlusconi Trial Postponed Until After Italian Election.” The Guardian. 11 Feb.

2013. Web. 17 Feb. 2013. < http://www.guardian.co.uk/world/2013/feb/11/silvio-

berlusconi-trial-italian-election>.

_______ “Italy: Berlusconi Trial to Proceed.” New York Times. 21 June 2008. Web. 16 Feb.

2013. <http://www.nytimes.com/2008/06/21/world/europe/21briefs-

BERLUSCONITR_BRF.html>.

Roach, Kent. “Section 7 of the Charter and National Security: Rights Protection and

Proportionality versus Deference and Status.” Ottawa Law Review. Vol. 42(3): 2011,

pp. 337- 367.

___________ The Supreme Court on Trial: Judicial Activism or Democratic Dialogue. Toronto:

Irwin Law, 2001.

133.
___________ “Dialogic Judicial Review and its Critics.” Supreme Court Law Review. Vol.

23(2): 2004, pp. 49-104.

Rossi, Sara. “Italy center-right lawmakers protest against Berlusconi trial.” Reuters. 11 Mar.

2013. < http://www.reuters.com/article/2013/03/11/us-italy-berlusconi-

idUSBRE92A0T720130311>.

“Saadi v. Italy.” ECHR 179, The European Court of Human Rights. 28 Feb. 2008. Bailii. Web.

<http://www.bailii.org/eu/cases/ECHR/2008/179.html>.

Sager, Lawrence. Justice in Plainclothes. New Haven: Yale Univ. Press, 2004.

“The Same-Sex Marriage Cases.” Oyez. 28 Mar. 2013. <http://www.oyez.org/ssm/>.

Sandmann, Warren. “West Virginia State Board of Education v. Barnette.” Free Speech on

Trial. Ed. Richard Parker. London: Univ. of Alabama Press, 2003, pp. 100-115.

Scheppele, Kim Lane. “The New Judicial Deference.” Boston University Law Review. Vol.

92(1): Jan. 2012, 89-170.

____________ “Judicial Empowerment and Democracy.” International Sociology. Vol. 18(1):

Mar. 2003, pp. 225-244.

“Sentenza di 3-22 Luglio 2003.” 263/2003, La Corte Costituzionale della Repubblica Italiana. 3

Jul. 2003. Corte Costituzionale. Web.

<http://www.cortecostituzionale.it/actionPronuncia.do>.

“Sentenza di 13-20 Gennaio 2004.” 24/2004, La Corte Costituzionale della Repubblica Italiana.

20 Jan. 2004. Corte Costituzionale. Web.

<http://www.cortecostituzionale.it/actionPronuncia.do>.

“Sentenza N. 23 Anno 2011.” 23/2011, La Corte Cositituzionale della Repubblica Italiana. 13

Jan. 2011. Corte Costituzionale. Web.

<http://www.cortecostituzionale.it/actionPronuncia.do>.

134.
“Sentenza N. 262 Anno 2009.” 262/2009, La Corte Costituzionale della Repubblica Italiana. 7

Oct. 2009. Corte Costituzionale. Web.

<http://www.cortecostituzionale.it/actionPronuncia.do>.

“State Policies in Brief: An Overview of Abortion Laws.” Guttmacher Institute. 21 Mar. 2013.

<http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf>.

“Suresh v. Canada.” 1 SCR 3 (2002), The Supreme Court of Canada. 11 Jan. 2002. Lexus.

Web. <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1937/index.do>.

Sweet, Alec Stone. “Constitutional Courts.” The Oxford Handbook of Comparative

Constitutional Law. Ed. Michel Rosenfeld and András Sajó. Oxford: Oxford Univ. Press,

2012. Pp. 816-830.

Ungovernability Wins.” The Economist. 2 Mar. 2013. <http://www.economist.com/news/

europe/21572783-result-has-come-bombshell-italy-and-across-euro-zone-

ungovernability-wins>.

Vestal, Christine. “Abortion Rates Down, Restrictions Up.” Stateline. 18 Jan. 2008. Web.

<http://www.stateline.org/live/details/story?contentId=272870>.

Waldron, Jeremy. “The Core of the Case Against Judicial Review.” Yale Law Journal. Vol.

115(6): Apr. 2006, pp. 1346-1406.

Wearden, Graeme. “German court approves bailout fund, with conditions - eurozone crisis as it

happened.” The Guardian. 12 Sept. 2012. Web. 30 Jan. 2013. <http://www.guardian.

co.uk/business/2012/sep/12/eurozone-crisis-german-court-bailout-fund >.

Wegen, Gerhard and Christopher Kuner. Germany: Federal Constitutional Court Decision

Concerning the Maastricht Treaty. 33 I.L.M. 388, 1994.

“West Virginia Board of Education v. Barnette.” 319 U.S. 624, The Supreme Court of the United

States. 14 Jun. 1943. Justia. Web. <  http://supreme.justia.com/cases/federal/us/319/

624/case.html>.

135.
Woolman, Joanna. “Enemy Combatants: The Legal Origins of the Term ‘Enemy Combatant’ Do

Not Support Its Present Day Uses.” Journal of Law & Social Challenges, Vol. 7(145):

2005, pp. 154-160.

136.
 HONOR CODE PLEDGE

________________________________________________________________________

“This paper represents my own work in accordance with University regulations.”

Signed,

________________________________________

Michael K. Hanley

________________________

3 April 2013

137.