Volume 12, Issue 3 -

Who gets to determine rights and justice? Which mechanism of judicial selection and accountability is optimal? There is no easy answer. If judges are independent experts, nominated and evaluated by their peers, they will be immune from the pressures of electoral rent-seeking, but unaccountable to the people. If judges are elected, they will be democratically accountable, but subject to the redistributive pressures of the ballot box. If judges are nominated and controlled by politicians, they will face the temptations of bureaucratic self-interest and will not be democratically accountable, but they will be shielded from the Public Choice problems of elections. This paper uses the death penalty in the United States to measure and compare the impact of different methods of judicial selection. In the end, there is no optimal solution – at least not within a state judicial monopoly.

Although the German Bundesverfassungsgericht has become one of the most famous constitutional courts in the world, there is an older, less ambitious but nonetheless interesting tradition of constitutional review in Germany. In this article an analysis will be undertaken of the functioning and case law of the Staatsgerichtshof für das deutsche Reich (RStGH), especially its case law on federal disputes, to see whether this half-forgotten court of the Weimar years could be an interesting role model for the Kingdom of the Netherlands, where the discussion on a new constitutional arrangement for the resolution of federal disputes has been paralysed for years.

Last year, Mexico’s Supreme Court issued a momentous decision pertaining to the so-called legislative omission. It represented a groundbreaking judgment not only for its effects on freedom of speech and of the press and separation of powers in Mexico, but also – and perhaps more saliently- for its implications in the way in which the Court is asserting its powers in interpreting the Constitution.

In Unconstitutional Constitutional Amendments, Yaniv Roznai seeks to unscramble the apparent contradictions in the idea of an unconstitutional constitutional amendment. This argument is ambitious in its scope and its global comparative reach. Roznai does not limit himself to justifying explicit limitations placed on the power of amendment nor to limitations that go only to process. Rather, Roznai argues that amendment powers are always subject to limitations of substance and procedure and that these limitations may be implicit as well as explicit. In this short essay, I will argue that the form of argument deployed by Roznai cannot fully justify the doctrine of unamendability as Roznai elaborates upon it. It allows Roznai to establish that unamendability is a conceptual possibility but it does not follow, as he seeks to argue, that unamendability is a necessary consequence of constitutionalism.

This is a response to the contributions of Professors Lech Garlicki and Zofia A Garlicka-Sowers, Vicki C Jackson, Sabrina Ragone and Adrienne Stone, in a book symposium on Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017).