European and U.S. Constitutionalism

Göttingen, 23-24 May 2003 . Science and technique of democracy, No. 37 CDL-STD(2003)037 Engl. only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) European and U.S. Constitutionalism UniDem Seminar organised in Göttingen on 23-24 May 2003 in co-operation with the Institute of International Law, University of Göttingen, and Yale Law School. TABLE OF CONTENTS FOREWORD Mr Georg Nolte………………………………………………………………..7 INTRODUCTION European and U.S. Constitutionalism: comparing essential elements Mr Georg Nolte………………………………………………………………..9 FREEDOM OF SPEECH Freedom of speech in Europe and in the USA Mr Roger Errera……………………………………………………………..23 Freedom of expression adjudication in Europe And the United States: a case study in Comparative constitutionel architecture Mr Federick Schauer…..……………………………………………………41 Comment Ms Lorraine Weinrib…………………………………………………………55 Comment Mr Winfried Brugger………………………………………………………..59 HUMAN DIGNITY The concept of human dignity in European And U.S. Constitutionalism Mr Giovanni Bognetti………………………………………………………65 “Human dignity” in Europe and the United States: The social foundations Mr James Q. Whitman…………………………………………………….....81 Comment Mr Eyal Benvenisti…………………………………………………………93 Comment Mr Hugh Corder…………………………………………………………….95 THE PROTECTIVE FUNCTION The protective function of the State Mr Dieter Grimm…………………………………………………………………101 The protective function of the State in the United States And Europe : The constitutional question Mr Frank I. Michelman………………………………………………………..111 The protective of the State in the United States And Europe: a right to State protection? Comment Ms Heike Krieger……………………………………………………………….129 ADJUDICATION Constitutional adjudication iin Europe and The United States : Parodoxes and contrasts Mr Michel Rosenfeld…………………………………………………………..139 The road to constitutionalism in the UK : Responses to the United States and Europe Mr Jeffrey Jowell………………………………………………………………...169 Comment Mr László Sólyom……………………………………………………………….177 Comment Mr César Landa…………………………………………………………………183 DEMOCRACY AND INTERNATIONAL INFLUENCES Democracy and international influenceS Mr Lech Garlicki………………………………………………………………187 The two world orders Mr Jed Rubenfeld……………………………………………………………...201 Comment Mr Armin Von Bogdandy…………………………………………………….213 Comment Mr Yasuaki Onuma……………………………………………………………..217 FOREWORD Mr Georg NOLTE Professor, University of Göttingen, Germany This book is the fruit of an intense collaboration between the European Commission for Democracy through Law (the “Venice Commission”) and academia. The Venice Commission is the Council of Europe’s advisory body on constitutional matters. Established in 1990, the Commission has played a leading role in the adoption of constitutions that conform to the standards of Europe’s constitutional heritage. It contributes to the dissemination of the European constitutional heritage while continuing to provide “constitutional first-aid” to individual states. The Venice Commission also plays a role in crisis management and conflict prevention through constitution building and advice. The Venice Commission is composed of independent experts. The members are senior academics, particularly in the fields of constitutional or international law, supreme or constitutional court judges or members of national parliaments. Acting on the Commission in their individual capacity, the members are appointed for four years by the participating countries. All Council of Europe member states are members of the Venice Commission; in addition, Kyrgyzstan joined the commission in 2004. Argentina, Canada, the Holy See, Israel, Japan, Kazakhstan, the Republic of Korea, Mexico, the United States and Uruguay are observers. South Africa has a special co-operation status similar to that of the observers. The European Commission and OSCE/ODIHR participate in the plenary sessions of the Commission. The work of the European Commission for Democracy through Law aims at upholding the three underlying principles of Europe’s constitutional heritage: democracy, human rights and the rule of law which represent the cornerstones of the Council of Europe. Accordingly, the Commission works in the four key areas of: constitutional assistance, elections and referendums, co-operation with constitutional courts, and transnational studies, reports and seminars. In May 2003, the Commission organised a seminar in Göttingen, Germany, on “European and American Constitutionalism”. This seminar was held in collaboration with the Institute of International Law, University of Göttingen, and Yale Law School. In addition to the Council of Europe, the Volkswagen Foundation provided generous funding. After the conference all speakers revised and completed their papers in the light of the discussions in Göttingen. Many people deserve to be thanked for their contributions. Apart from the authors, these are Professors Jeffrey Jowell, University College London, and Jed Rubenfeld, Yale Law School, for their support during the preparatory phase of the conference; Ms. Caroline Martin and Ms. Caroline Godard from the Council of Europe for all their organisational work; Ms. Anna-Jule Arnhold, Mr. Helmut Aust, Ms. Nina Naske, and Mr. Florian Prill, all University of Göttingen, for patiently and diligently checking the footnotes and putting them into the correct format; Ms. Roslyn Fuller, University of Göttingen, for enthusiastically and professionally dealing with all the language aspects of the text; and, finally, as ever, Ms. Christiane Becker, University of Göttingen, for being the friendly, competent and determined manager of the whole enterprise. INTRODUCTION - EUROPEAN AND U.S. CONSTITUTIONALISM: COMPARING ESSENTIAL ELEMENTS Mr Georg NOLTE Professor, University of Göttingen, Germany Until the end of the Cold War comparative constitutional lawyers and political scientists tended to emphasise the common ground within the North Atlantic region.1 Today, some even speak of a “European-Atlantic constitutional state”.2 This view was and is perfectly legitimate. It was not only the radically different socialist understanding of law which made western constitutional theories and practices appear to be so similar. This similarity is also firmly grounded in the cross-fertilising constitutional developments between Western Europe and North America which have taken place before and since the eighteenth century. The end of the socialist systems in Eastern Europe and increasing “globalisation”, however, may bring about a change of emphasis from the similarities to the differences between the constitutionalisms in the United States and Europe. Over the past few years issues have emerged which seem to indicate that European constitutional theory and practice is becoming aware that it has developed certain rules and possesses certain properties which are characteristically different from U.S. constitutionalism and vice versa. This new perspective, or rather such a change in emphasis, is likely to be reinforced by political developments which expose discrepancies in the evaluation of fundamental questions between the majority of Europeans on the one hand and the majority of Americans on the other.3 This book was conceived before the drama of the latest Iraq crisis unfolded. That crisis has had profound repercussions on transatlantic and intra-European political relationships. It has obviously gone beyond disputes about international law. But has it also reached the level of constitutional law? It is true that weapons of mass destruction and Iraq as such have little to do with constitutionalism. The approaches of how to deal with such threats, however, may well be somehow connected to more fundamental questions of the respective political identity. This is where the area of constitutionalism begins. I. European Constitutionalism? 1 See e.g. Klaus Stern, Grundideen europäisch-amerikanischer Verfassungsstaatlichkeit (Berlin: de Gruyter, 1984). 2 Thomas Giegerich, “Verfassungsgerichtliche Kontrolle der auswärtigen Gewalt im europäisch-atlantischen Verfassungsstaat: Vergleichende Bestandsaufnahme mit Ausblick auf die neuen Demokratien in Mittel- und Osteuropa” (1997) 57 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 405-564. 3 Robert Kagan, Of Paradise and Power (New York: Knopf, 2003). Constitutionalism is about the fundamental rules and the identity, or better: the self- understanding (Selbstverständnis) of any particular political community.4 In different ways, the self-understanding of both the European states and Europe on the one hand, and the United States on the other, has become somewhat insecure over the past few years. The question is therefore whether this insecurity has affected the most fundamental areas of political self-understanding, the respective constitutionalisms, and whether a new relationship between Europe and the United States is emerging in this respect. In exploring this question the political context cannot be disregarded. At the same time, however, one should not lose one’s sense of proportion. Constitutional law concerns the deepest layers of the respective legal systems and political identities. Those layers cannot be changed easily even by major international developments. But does comparing “European and U.S. Constitutionalism” at all make sense? Is it not an exercise in comparing apples to oranges? European constitutionalism mostly appears to be a distinctly intra-European phenomenon.5 This is true even though reference to U.S. constitutionalism is frequently made in the intra-European debate.6

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