Magna Carta 800th Anniversary Event, Tuesday 24 March at 3.00pm

On Tuesday 24 March at 3.00pm in the Neil MacCormick Room (ground floor, Old College) Dr Brian Christopher Jones, Postdoctoral researcher, Institutum Iurisprudentiae, Academia Sinica, Taiwan, will give a talk to mark the 800th anniversary of Magna Carta, titled:

Preliminary Warnings on ‘Constitutional’ Idolatry’

Prof. Chris Himsworth, Professor Emeritus of Administrative Law at Edinburgh Law School, will provide some brief commentary as discussant, followed by open Q&A.

All are welcome

Abstract: Contemporary societies covet the notion of a written constitution. Yet should Britain choose to draft one, can I offer this important suggestion: please, call it anything but a “Constitution”. This statement is only slightly made in jest; in fact, it is quite serious. Constitutional fetishism, constitutional worship or “constitutional idolatry”, as Michael Klarman refers to it, is nothing to take lightly. While there has been a copious amount of commentary on the prospects and potential form of a UK written constitution, in addition to its history and evolution, the possibility of constitutional fetishism or constitutional idolatry becoming a significant factor throughout the citizenry, in the political arena, and especially in constitutional review and adjudication, appears to have been left out of the discussion. This is unfortunate, because the enactment of a codified Constitution will have an impact upon all these aspects in one way or another, and the potential development of some form of constitutional worship should be further discussed and debated before any action is taken.

Although it is acknowledged that enacting any type of foundational document, whatever called, encompasses particular implications, this piece contends that attaching the word “constitution” to a foundational document enhances such consequences, leading to a more distinctive “constitutional” fetishism. Difficulties arise because over centuries the word “constitution” has evolved from a largely structure-based meaning into a widely expansive symbolic meaning. Beyond merely delineating the structure of a state, the word now carries a variety of connotations. Some see it as the ultimate illustration of “we the people” popular sovereignty or as a vindication of the rule of law, while others see it as the completion or ultimate formation of a state or a government. Indeed contemporary constitutions, and especially Constitutions, serve highly symbolic functions that can manifest into significant issues for law, politics and the wider democratic state. Nowadays the word “constitution” is often used as a legal, political, and psychological truncheon: it has been employed to have ordinary documents masquerade as constitutions, been brazenly used to hollow out jurisdiction, and also been applied to have legislators think in legal, as opposed to political, terms. Given some of the rhetoric in the UK surrounding the possibility of a written constitution coming into being (i.e., “A New Magna Carta”, “Constitution Carnival”), this article concentrates on a few acute examples of “constitutional” fetishism the US is currently grappling with; problems which could become substantially more relevant if a founding British document is enacted.

Magna Carta poster

 

Presentation by Ilaria Di Gioia, Tuesday 17 February 2015 at 3.00pm

On Tuesday 17 February at 3.00pm in the Neil MacCormick Room (ground floor, Old College) Ilaria Di Gioia, PhD, Birmingham City University, will speak on

‘When Liberty Subverts Federalism: Is Nullification of Federal Law Legitimate?’

Abstract: The federal Constitution of the United States has repeatedly been praised for its brevity and clarity. It is the first federal Constitution and has been a model for the constitutions of several other federal countries, “the noblest fabric of government, ever devised by man”.[1] Nonetheless, when it comes to the distribution of powers between states and federal government its wording is still subject to polarising interpretations and therefore the battleground of political struggle. The recent debate over President Obama’s Health Care reform is an outstanding example of this conflict. Specifically, the intervention of the federal government in reform of the private insurance market has been criticised as beyond Congress’ powers (the argument is that Congress lacked the constitutional authority to enact the individual mandate) and has been challenged before the Supreme Court. Despite the Sebelius[2] ruling upholding the reform as constitutional, the debate over the constitutionality of the reform is still ongoing and the Supreme Court has granted certiorari to another challenge, King v. Burwell,[3]concerning the legality of IRS subsidies in federal exchanges.

The political opposition to the reform has also triggered an interesting constitutional phenomenon in a number of state legislatures: the nullification of certain provisions of the Act. What is nullification? A state measure that declares an action of the federal government to be unconstitutional and asserts that the federal action is null, void, and of no effect within the state. In 2014 alone, the legislatures of 26 states have considered at least 120 bills aimed at nullifying the Affordable Care Act. Such legally controversial proposals are growing in number and they disclose a revival of states’ rights, wrapped in the flag of the founding principle of individual liberty.

May the States lawfully declare federal laws void within their state’s boundaries? The U.S Constitution’s Supremacy Clause states that federal law trumps state law when the two conflict. On the other hand, activists advance Madison’s[4] and Hamilton’s[5] theory of interposition and Jefferson’s theory of nullification,[6] insisting on an originalist interpretation of the Constitution.

This paper is a foray in constitutional theory: it is intended to stimulate discussion over the legality of these controversial state measures and provides an analysis of the major nullification arguments.

  • [1] Anonymous, Epitaph on a broadside. Philadelphia, Feb. 22, 1832
  • [2] NFIB v. Sebelius, 132 S.Ct. 2566 (2012). Chief Justice John Roberts interpreted the individual mandate as an exercise of Congress’s taxation power. Thus, while it did not strike down the statute, this ruling greatly weakened it by putting constraints on how large individual mandate penalties could be and by making Medicaid expansion optional.
  • [3] 759 F.3d 358, 114 A.F.T.R.2d 2014-5259, 2014-2 USTC P 50,367 (2014)
  • [4] Virginia Resolution, 1798
  • [5] Federalist n. 33 (5th para)
  • [6] Kentucky Resolution, 1799

Discussant: Dr Pau Bossacoma i Busquets, Research fellow, Universitat Pompeu Fabra (UPF) Faculty of Law and visiting researcher at Edinburgh Law School