This paper discusses proportionality and remedial flexibility as judicial strategies for lowering the stakes of political conflict. As a prominent example, I compare the approaches of UK and US courts in addressing religious conscience objections to same-sex marriage.
Analyses of constitutional conventions seldom include those conventions that concern relations between the judiciary and other arms of government. The focus tends to be on the conventions concerning the monarch, executive and legislature. This paper argues that an extensive set of constitutional conventions relating to the judiciary exist, and that an analysis of them reveals three insights about the nature of constitutional conventions and the nature of the judiciary. First, the judiciary’s authority, independence and impartiality is largely secured by means of constitutional convention. Second, the reliance on constitutional conventions points to the strength yet fragility of the judiciary’s constitutional position. Third, these constitutional conventions reveal that necessarily problematic for constitutional conventions to be modified or even destroyed. The paper analyses the executive’s duty to defend the judiciary from public attack in Australia, the UK and the United States.
The American polity is polarized – more so than at any time since the run-up to the Civil War. Its memory is invoked from a particular angle – one might say a slant. Contemporary counter-revisionist accounts of the war – the attempt to lay Lost Cause states’ rights arguments in their grave – have devised their own distortive reduction: an abolitionist war of liberation against slavery.
This essay will explore the ways in which contemporary invocation of the Civil War as polarized politics informs, or misinforms, our present political moment. Those ways may be limited, or perhaps ought to be: an actual civil war is a dubious guide to even the most fraught peacetime process, and the peculiar, sectional nature of the divisions then suggests a very different kind of fracturing from that which America presently confronts – a project of secession, whose moral stakes we are, precisely because we misremember our own last war of secession, surprisingly ill-equipped to consider.
While political polarization is acknowledged and widely discussed, it has not yet entered into the mainstream discourse of comparative constitutional law, and global constitutionalism. This is the aim of our Article. Polarization creates great challenges to constitutionalism and to constitutional courts in particular, the latter being based on public legitimation across political divides, and on consensus. What are the effects of polarization on constitutional courts’ decisions, and on nomination processes of constitutional judges? How do judges cope with polarization and are they drawn themselves into one of the political camps? What are global aspects of this interaction, what are aspects that are determined by local determinators? And how should constitutional systems adjust to this new reality? These would be among the questions that we will aim to discuss in our Article.