The traditional debate on judicial activism focuses on what judges do with their power; in contrast, this paper focus on how they talk about their role (i) under a constitution that is perceived as having “transformative” ambitions, and (ii) in context of rising populist politics. While we tend to think of courts as either victims of or obstacles to populist politicians, recent constitutional developments in Brazil suggest a different possibility: constitutional judges can seize an anti-establishment political momentum to present themselves as representing the true interests of the People. By focusing on the failure of representative institutions, certain varieties of discourse on transformative constitutionalism might have actually empowered judges to adopt a populist vocabulary themselves and and present themselves as speaking for the people.
The subject of constitutional amendments has attracted significant attention in comparative constitutional law and theory. There remains however a lack of attention to how Southeast Asian jurisdictions have engaged in the practice of constitutional amendment. This gap is particularly striking as constitutional amendment, and not judicial interpretation or even legislative revision, has been the primary mode of constitutional change in many Southeast Asian countries. This article examines constitutional amendment practices in several Southeast Asian countries, arguing that the practical flexibility has been crucial for these countries to change their constitutions in a “legal” manner, especially since amendments are often seen as legitimate because they purportedly re-indigenize and reclaim the countries’ constitutions from their colonial roots.
One of the core issues for Constitutional Theory is justifying why constitutional law is superior to ordinary legislation. This fundamental question must be answered both in regard to the Constitution as originally enacted, and in regard to any constitutional amendments. In what concerns constitutional amendments, any answer that intends to go beyond a strictly formalist answer and address issues of legitimacy must present: (i) a theory of the special authority of the constitutional amendment power in relation to ordinary legislators, and (ii) an analysis of the actual practice and design of constitutional amendment rules that discusses if they can actually be justified or not. This article examines the design and the practice of constitutional amendment law in several Latin American countries arguing that, in some cases, there is a mismatch between theory and reality.
In recent years, a new creature has emerged on the institutional landscape: the Schmitelsen Court. This Court is the end-product of a combination of the positions presented by Hans Kelsen and Carl Schmitt in their famous debate during the Weimar years on “Who is the Guardian of the Constitution?”. The Schmitelsen guardian is a court thus fulfilling Kelsen’s vision of the constitutional court as the guardian of the constitution. However, it possesses the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. After establishing these theoretical points, I proceed by examining how the Schmitelsen Court model manifests itself in three case studies: the American Supreme Court, the Israeli Supreme Court and the European Court of Human Rights.