This article explores how the idea of racial “transition” shapes the United States Supreme Court’s racial equality cases. It examines major affirmative action, voting rights, and desegregation decisions in terms of their understanding of transition — including the racial past that the nation is transitioning from, the racial future that it should transition toward, and the form and trajectory that transition should take. The article demonstrates that a number of legal debates about race and racism are best understood as debates about racial transition. It further argues that the Supreme Court needs a more holistic and historically and socially situated account of transition if it is to facilitate a move away from racial wrongdoing.
Democracy is a fugitive condition or opened process and thus amenable to disruption and renewal. Democracy is not just a form of government or set of institutions but rather a moment marking the practice of politics itself. Radical democratic politics is oriented towards the contestation of prevailing regimes. On the other hand, Constitutionalism is understood to avoid arbitrariness by designing mechanisms that determine who can rule, how, and for what purposes. It puts limits on democracy by means of separation of power, protection and enforcement of fundamental rights etc. This relation between democracy and constitutionalism operates in different ways in times of crisis to defend the ongoing structure of democratic constitutionalism. The use of impeachment as a coup – as recently happened in Brazil- undermines democracy and constitutionalism. This paper aims at discussing the impeachment as a trap to turn a completely unconstitutional procedure into a regular constitutional one.
The current near collapse of the Arab state system is but the most recent manifestations of an enduring failure to adapt to the exigencies of an externally imposed but inescapable modernisation process. At the heart of that systemic failure is the lack of an effective public law, as Western legal transplants have not worked and indigenous normative and organisational models based on religious tradition have proven elusive. The adoption of Western models –through both colonial coercion but also deliberate choice – has been accompanied by demands for ‘sacred law’ of to play a role in the modern constitutional and bureaucratic edifice of the state. This has created numerous common points of friction when the bounded rationality of a ‘sacred law’ clashes with the comprehensive rationality of the modern, corporatist state. This tension is ultimately a reflection of the failure to accept the methodological prerequisites of modern public law, not least international law.
It happens that unforeseen circumstances can disturb states’ daily-life and create situations of emergency to which authorities must respond expeditiously.
These situations can be due to several factors. One can think of emergencies caused by natural factors, security concerns or by economic reasons. In order to deal with these unexpected changes and to react as quickly as possible, States often set up specific legislative procedures which deviate from the usual ones. In that respect, it’s not uncommon that the distribution of competence between the Legislative and the Executive Powers and the Judiciary, as it is enacted in the Constitution or other legal texts, is temporarily reshaped.
Our paper addresses these specific procedures and their evolution in recent decades, both in Belgium and in other countries. It could be easily adapted in order to fit into a panel dealing more generally with emergency situations or a similar topic.
It is not simple to define the elements that must be considerate to build a resilient constitution. However, there are some aspects that should be observed to deal with problems, overcome obstacles or resist to adverse situations, finding solutions to overcome adversity in a constitutional system. Thus, the constitutional longevity does not come just from formal procedural decisions, but rather, it must be built on a proposal that serves the interests of the collectivity, guided by a democratic order and considering a dialogue based on respect and tolerance. Moreover, constitutional longevity is related with the inclusion of the community in the constitutional design and the plasticity to be adapted to new social issues. Consequently, the resilience of a constitution in democratic societies, depends on the openness to a rational dialogue among members of the community, increasing permanently the legitimacy and respect of the constitution, in a continuous process of recognition.