Mar 3, 2020 Benjamin Plener CoverConstitutional Law
Carolyn Shapiro,
Democracy, Federalism, and the Guarantee Clause, 62
Ariz. L. Rev. (forthcoming, 2020), available at
SSRN.
How much power does Congress have to regulate state democracy? More than it may realize, suggests Professor Carolyn Shapiro, in her article, Democracy, Federalism, and the Guarantee Clause. Shapiro locates this untapped power in the Guarantee Clause, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” A significant body of scholarship has considered whether this clause empowers the federal judiciary to review undemocratic state practices (P. 2), a question the Supreme Court has repeatedly answered in the negative. But Shapiro flips the inquiry, focusing not on what the courts cannot do, but on what Congress can do. She concludes that Congress can do a great deal, arguing that the Guarantee Clause gives Congress the authority—and the duty—to intervene when necessary to ensure the democratic integrity of states.
Deploying a series of textual, functional, and historical arguments, Shapiro reframes the Guarantee Clause as a structural principle with dynamic substantive content. Modern democracy scholars might put it this way: antidemocratic practices in one state may produce negative “spillover” effects in another, causing an “antidemocratic spiral [that] is contagious.” (P. 5.) The Framers did not think in these precise terms, but they recognized the need to protect every state by ensuring that each state had a similar form of republican government. Thus, Article IV Section 4 protects “each” state from “Invasion” and “domestic violence,” but guarantees to “every” state a “Republican Form of Government.” (Pp. 11-12.) Continue reading "Congressional Power to Guarantee State Democracy"
Mar 2, 2020 Sam F. HalabiInternational & Comparative Law
Imagine a famous foreign jurist—say Richard Goldstone or Claire L’Heureux-Dubé—appointed to the U.S. Supreme Court, instead of (U.S. citizen) Samuel Alito, when popular criticism of citation of foreign law was at a fever pitch in the U.S. The outcry would have been swift and incendiary. Indeed, Ruth Bader Ginsburg and Sandra Day O’Connor received death threats for engaging with foreign law as they did. Yet for at least 21 jurisdictions (nearly all of them member states of the United Nations), foreign judges sit alongside citizen judges, helping to ensure the vibrancy of (sometimes recently established) democratic institutions, building confidence in the rule of law, and playing specific roles in ensuring judicial impartiality.
In Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts, Rosalind Dixon and Vicki Jackson analyze the historical and functional reasons that these arrangements have arisen. With a focus on the democratic legitimacy of the practice, Dixon and Jackson concentrate on three jurisdictions—Hong Kong, Fiji, and Bosnia-Herzegovina—as they analyze the advantages, disadvantages, and factors that lead to relative success or failure of hybrid court efforts. Dixon and Jackson are attentive to the relevance of their subject, not only for the potential expansion of hybridization, but also for the legitimacy of comparative constitutional engagement generally (the article builds on their previous work on interpretive outsiders), even when all judges are citizens of a country’s constitutional court. Continue reading "Foreign Judges on Constitutional Courts?"
