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Announcements

Announcements. Midterm study guide posted on course webpage next week A. Stone Sweet Guest Lecture, Thursday 4/26 on the midterm Extra Credit Opportunity:European Constitutionalism Conference, Fri. 4/27 see following Link for information:

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Announcements

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  1. Announcements • Midterm study guide posted on course webpage next week • A. Stone Sweet Guest Lecture, Thursday 4/26 on the midterm • Extra Credit Opportunity:European Constitutionalism Conference, Fri. 4/27 see following Link for information: faculty.washington.edu/rcichows/EUConstitutionalismConference

  2. Extra Credit for LSJ 367 Comparative Law and Courts: EU Constitutionalism Conference 1) Turn in a 2 page (double spaced, 12 pt. Font, 1 inch margins) paper on one of the panels from the Conference. This should include a general description of what the panel was about and how this relates to something you learned in this course. For completing the assignment students will receive .1 extra points on their total COURSE grade. 2) Assignment must be turned in to your TA by : Friday, May 4th

  3. Constitutional Politics and Rights Protection I. Constitutional Law Establishes Normative Hierarchies A. Rights Provisions vs. Statutory Law 1. Direct Effect of a Constitutional Right Definition: If a statutory law violates a constitutional provision, the statute is declared invalid

  4. (I. Constitutional Law Establishes Normative Hierarchies A. Rights Provisions v. Statute, cont.) 2. EXAMPLE: Cohen vs. Calif. (1971) Supreme Court CA Law (disturbing the Peace) + constitutional interest (public order) Constitutional Right (freedom of speech)

  5. (I. Constitutional Law & Normative Hierarchies, cont.) B. Intraconstitutional Hierarchies Definition: Establishes the hierarchy between constitutional provisions 1. Constitutional Rights vs. Duties

  6. (I. Constitutional Law & Normative Hierarchies B. Intraconstitutional Hierarchies 1. Constitutional Rights vs. Duties, cont.) EXAMPLE: Italian Constitution Art. 21.1 (right to free press) vs. Art. 21.6/7 (govt. duty to uphold morality)

  7. (I. Constitutional Law & Normative Hierarchies B. Intraconstitutional Hierarchies, cont.) 2. Constitutional Right vs. Constitutional Right (difficult for judges to decide) EXAMPLE: Abortion cases Right to life vs. Right to privacy

  8. (I. Constitutional Law & Normative Hierarchies B. Intraconstitutional Hierarchies, cont.) 2. Constitutional Right vs. Const. Right, cont.) EXAMPLE: Naomi Campbell Case House of Lords Freedom of Expression (Art 10) Right to Privacy (Art 8)

  9. II. The Process of Constitutional Decision-making Two Stage Process • The judge determines the nature and content of the relevant constitutional provision. • A specific controversy about the meaning of the provision is resolved by applying that law.

  10. III. Rights Transformation in Europe • Traditional System: indirect effect, fundamental rights derived from code law • New Constitutionalism: direct effect, individual rights come from the constitution.

  11. IV. The Structure of Constitutional Rights • Few Absolutes, many limitations EXAMPLES: Spain: Art. 20.1 & Art. 20.4 Italy: Art. 21.1 & Art. 21.6 Germany: Art. 2.1 France: Art. 11

  12. (IV. The Structure of Constitutional Rights, cont.) B. Negative Rights • tells state authorities what they must not do (e.g. freedom of expression) C. Positive Rights - tells state authorities what they must do (e.g. health care, education)

  13. V. How Constitutional Judges Decide • Balancing 1. Definition: deliberation about the proper relational limits of 1) a given constitutional right of an individual or group that has come in conflict with 2) another individual’s right, or a constitutional interest of the government.

  14. (V. How Constitutional Judges Decide A. Balancing, cont.) 2. The sequence of decision-making Interpretation > balancing > proportionality

  15. (V. How Constitutional Judges Decide, cont.) B. Proportionality Tests Explanation: If a statute or constitutional provision is going to limit a constitutional right, it should not be out of proportion to the value provided and should be the least amount of limitation possible on the other right. C. European Proportionality Tests: rationality or reasonableness doctrine.

  16. (V. How Constitutional Judges Decide, cont.) D. Unwritten rights EXAMPLES: Spain Art 1: “Spain considers liberty, justice, equality and political pluralism as the foremost values of its legal order” Italy Art 2: “guarantees the invaluable rights of man”

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