CONSTITUTIONAL STUDIES Volume 1.1 Editors editor: Howard Schweber managing editor: Jennifer Brookhart Editorial Board Jack Balkin / Yale University Sanford Levinson / University of Texas at Austin Sotorios Barber / University of Notre Dame Michael Les Benedict / The Ohio State University Elizabeth Beaumont / University of Minnesota Maeva Marcus / George Washington University Saul Cornell / Fordham University Kenneth Mayer / University of Wisconsin–Madison John Ferejohn / New York University Mitch Pickerill / Northern Illinois University Tom Ginsburg / University of Chicago Kim Scheppele / Princeton University Mark Graber / University of Maryland Miguel Schor / Drake University Ran Hirschl / University of Toronto Stephen Sheppard / St. Mary’s University Gary Jacobsohn / University of Texas at Austin Rogers Smith / University of Pennsylvania András Jakab / Hungarian Academy of Sciences Robert Tsai / American University Kenneth Kersch / Boston College Mark Tushnet / Harvard University Heinz Klug / University of Wisconsin–Madison Keith Whittington / Princeton University Editorial Office Business Office Please address all editorial correspondence to: Journals Division Constitutional Studies The University of Wisconsin Press 110 North Hall 1930 Monroe Street 1050 Bascom Mall Madison, WI 53711 Madison, WI 53706 t: 608-263-0668 t: 608.263.2293 f: 608-263-1173 f: 608.265.2663 [email protected] [email protected] Constitutional Studies is published twice annually by the University of Wisconsin Press, 1930 Monroe Street, 3rd Floor, Madison, WI 53711-2059. 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(Preservation services provided by Portico: http://www.portico.org/ digital-preservation/) Print editions of the journal are available by paid subscription. “green” open access: The University of Wisconsin Press supports Green Open Access for all articles: authors are free and are encouraged to make draft versions of articles available in on-line repositories as soon as possible, under the Press’s Guidelines for Journal Authors’ Rights. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. http://creativecommons.org/licenses/by-nc-nd/4.0/ Mission Statement Constitutional Studies publishes work from a variety of disciplines that addresses the theory and prac- tice of constitutional government. The journal seeks work of the highest quality that expands our understanding of constitutional institutions and the bases for their legitimacy, practices of consti- tutional self-government, formal and informal constitutional systems, approaches to constitutional jurisprudence, and related subjects. We welcome submissions from comparative, empirical, historical, normative, or analytic perspectives from scholars across the range of the social sciences and human- ities. All submissions will be subjected to double-blind peer review. The journal is affiliated with the Center for the Study of Liberal Democracy and supported by generous funding from the Bradley Foundation. Instructions for Authors manuscript submission and review: To submit a manuscript for consideration, please send an electronic file (formatted in Microsoft Word) via theConstitutional Studies online submission portal (constitutionalstudies.msubmit.net). The menu will prompt the author to create an account, then log in and provide all necessary information, including the manuscript category, contact infor- mation for the corresponding author (phone number, fax number, e-mail address), and suggested reviewers. The web site will automatically acknowledge receipt of the manuscript and provide a refer- ence number. The Editor will assign the manuscript to anonymous reviewers, and every effort will be made to provide the author with a review in a timely fashion. components: Submit the text of the manuscript as a Microsoft Word file, along with a separate cover letter (also in MS Word); if there are figures, upload them as individual image files. The cover letter should state that all authors have read and approved the submission of the manuscript, that the manuscript has not been published elsewhere, and that it is not currently under consideration for publication by another journal. Include the names and contact information for any individuals who are especially qualified to review the manuscript; you may also name any individuals who may not be able to provide an unbiased review. author anonymity: Because manuscripts are evaluated anonymously, they should not bear the author’s name or institutional affiliation. Please remove from the manuscript all references or acknowledgements that might indicate the identity of the author. However, the author’s name and other identifying information may appear in the cover letter and will be required in the post-peer- reviewed, final submitted article. length and abstract: The normal length of published manuscripts is 8,000–10,000 words. All article submissions should include an abstract of 100–150 words. Please include 5–7 keywords to identify the article for search purposes. manuscript preparation and style: Submissions should follow the author-date system of documentation as outlined in the Chicago Manual of Style (16th ed., chapt. 15 or 15th ed., chapt. 16). The journal office may request full revision of manuscripts not meeting the Chicago Manual of Style requirements for documentation. Further instructions for authors can be found at constitutionalstudies.wisc.edu/contributors.html TABLE OF CONTENTS Editor’s Note 1 Mark A. Graber | Young Jeffersonians and Adult Marshallians 5 Ethan Alexander-Davey | Restoring Lost Liberty 37 Clement Fatovic | James Madison and the Emergency Powers of the Legislature 67 Thomas M. Keck | Hate Speech and Double Standards 95 Zoltán Szente | The Political Orientation of the Members of the Hungarian Constitutional Court between 2010 and 2014 123 COVER IMAGE: Bronze statue of John Marshall by American sculptor William Wetmore Story. (Im- age courtesy of Shutterstock.com.) EDITOR’S NOTE Welcome to the first issue of Constitutional Studies. This journal is brought to you with the generous support of the Bradley Foundation and the Center for the Study of Liberal Democracy at the University of Wisconsin–Madison. While this first issue has been considerably delayed by a variety of technical factors, we are confident that future issues will be forthcoming on a regular and timely basis. The mission statement for this journal describes its goal as the presentation of research and analysis concerning constitutions from a broad range of viewpoints and approaches. The selection of articles in this first issue bears out that mission statement. In “Young Jeffersonians and Adult Marshallians: Constituttional and Regime Transitions in Public Schools and Nation- States,” Mark Graber explores ways in which constitutional theories appear in places far removed from the halls of ap- pellate courts. Graber considers the provocative idea that there are distinct and characterizable forms of constitutionalism that appear in student councils. Using Jefferson and Marshall as two broadly drawn templates for constitutional reason- ing, Graber proposes that the thinking about rules and their interpretation that oc- curs in student councils is no less “constitutional” than the reasoning of the justices of the U.S. Supreme Court; it just displays a different version of constitutionalism at work. The implications of Graber’s argument are that “constitutionalism” is a phenomenon that we can see all around us if we only look and if we are open to the possibility of multiple different forms of the concept. In “Restoring Lost Liberty: François Hotman and the Nationalist Origins of Constitutional Self-Government,” Ethan Alexander-Davey provides us with a study in the intellectual history of constitutionalist thought. Focusing on the underappre- ciated work of François Hotman, Alexander-Davey shows unexpected nationalist Constitutional Studies 1.1 ©2016 by the Board of Regents of the University of Wisconsin System This open access article is distributed under the terms of the CC BY-NC-ND 4.0 license (https://creativecommons.org/licenses/by-nc-nd/4.0/) and is freely available online at: https://constitutionalstudies.wisc.edu or https://uwpress.wisc.edu/journals/journals/cs.html 1 Editor’s Note roots to what is usually thought of as liberal constitutionalism. Insofar as we seek to understand constitutionalism as a system of ideas, not merely a set of rules, this kind of excavation of the source materials makes an important contribution to our understanding. Ideas, as Alexander-Davey reminds us, have histories that shape and inform their meanings, and examining these histories challenges received no- tions of how different forms of constitutionalism relate to one another. Clement Fatovic’s article, “James Madison and the Emergency Powers of the Legislature,” focuses on American constitutional practice, specifically the thinking of James Madison. Fatovic’s exploration