Making and Breaking Constitutions

Course content

The course Making and Breaking Constitutions draws on contemporary constitutional developments, cases and controversies that have in recent years put domestic constitutions around the world to a test. We will cover contentious topics, such as the Brexit referendum, abusive constitutionalism, and decisions of various constitutional courts on unamendability.

 

The course deals comparatively with constitutional texts, their design, and shortcomings. You will learn about foundational concepts, institutions, and ideas that underpin the architecture of a modern constitutional state.

 

Although the course is primarily advertised for MA students, it is also open to interested BA students provided that they already had a general course on constitutional law. The course takes on advanced theories but is designed in a way that even students with little previous knowledge should be able to keep up.

 

Students are expected to read the required reading beforehand so that we can discuss the material in the class.

 

The course is structurally divided into three segments:

 

  • Part one, on Comparative Matters, will provide students with a theoretical baseline of the origins, nature, issues and methodology of comparative public law. The question is why and how do we compare constitutions?
     
  • Part two, on Constitutions, Constitution-making, and Change, examines in a comparative context what do constitutions constitute, and how are they made. We will cover the theory of constitutional amendment, so that we may later understand abusive constitutional change.
     
  • Part three, on Breaking Constitutions, oexamines the theory of unconstitutional umendments, abusive constitutional practice, back-sliding. We will look at challenges to modern constitutions to understand how they may fail.
Learning outcome

Knowledge:

  • Knowledge about foundational concepts, principles, ideas, and institutions in constitutional theory
  • Knowledge about the comparative-legal method
  • Knowledge about a broad set of world constitutions, including how they practically regulate constitutional change
  • Knowledge about the basic structure of a constitutional design

 

Skills:

  • Ability to identify and analyse differences between legal systems
  • Ability to construct a legal argument based on comparative law
  • Ability to critically discuss constitutional change, entrenchment, referendum and other institutions
  • Ability to critically discuss the relationship between various constitutional institutions and principles
  • Ability to find the answers to legal questions of constitutional theory
  • Ability to analyse and discuss the reasons for the adoption of specific constitutional design and institutions

 

Competences:

  • Ability to apply the comparative-legal method to new problems and solve important legal questions
  • Ability to identify shortcomings and coherence in comparative constitutional design
  • Ability to reflect critically on other legal systems
  • Ability to design and implement legal solutions for a system based on comparative best practice and experience

Students will present on the design of their domestic constitutional systems, selected cases and controversies, work in groups and discuss. Kahoot and other tools will be used to activate students. The lecturer will use presentations and handouts.

  • Farrah Ahmed and Adam Perry, “Constitutional Statutes” (2016) Oxford Journal of Legal Studies (2016) available at SSRN: https://ssrn.com/abstract=2743936
  • Richard Albert, “Constitutional Amendment and Dismemberment” (2018) 43 Yale Journal of International Law, available at SSRN: https://ssrn.com/abstract=2875931
  • Richard Albert, “How a Court Becomes Supreme” (2017) 77 Maryland Law Review
  • Richard Albert, “How Unwritten Constitutional Norms Change Written Constitutions” (2015) 38 Dublin University Law Journal, available at SSRN: https://ssrn.com/abstract=2628460
  • Tom Ginsburg, “Constitutional Endurance” in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (2011 Edward Elgar), available at SSRN: https://ssrn.com/abstract=1899636
  • Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (2009 CUP) Chapter 3 *will be made accessible by the course teaches
  • Aziz Z. Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy” (2018) 65 UCLA Law Review, available at SSRN: https://ssrn.com/abstract=2901776
  • David Landau, “Abusive Constitutionalism” (2013) 47 UC Davis Law Review, available at SSRN: https://ssrn.com/abstract=2244629
  • Yaniv Roznai, “Towards a Theory of Unamendability” (2018) NYU Public Law Research Paper No. 12, available at SSRN: https://ssrn.com/abstract=2569292

Fluency in English.

Written
Oral
Collective
Continuous feedback during the course of the semester
Feedback by final exam (In addition to the grade)

Students will receive feedback throughout the course on assignments and other writing, as well as their presentations. Finally, students will receive feedback on their exam, which takes the form of an individual written assignment.

ECTS
7,5 ECTS
Type of assessment
Written assignment
Individual written assignment
Marking scale
7-point grading scale
Censorship form
No external censorship

Single subject courses (day)

  • Category
  • Hours
  • Preparation
  • 178,25
  • Seminar
  • 28
  • English
  • 206,25