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Comparative Constitutional History
Volume Two: Uses of History in Constitutional Adjudication
Series:
Constitutions are a product of history, but what is the role of history in interpreting and applying constitutional provisions? This volume addresses that question from a comparative perspective, examining different uses of history by courts in determining constitutional meaning. The book shows that there is considerable debate around the role of history in constitutional adjudication. Are, for example, historical public debates over the adoption of a constitution relevant to reading its provisions today? If a constitution represents a break from a prior repressive regime, should courts construe the constitutionâs provisions in light of that background? Are former constitutions relevant to interpreting a new constitution? Through an assessment of current practices the volume offers some lessons for the future practices of courts as they adjudicate constitutional cases.
Contributors are: Mark D. Rosen, Jorge M. Farinacci-Fernós, Justin Collings, Jean-Christophe Bédard-Rubin, Cem Tecimer, Ãngel Aday Jiménez Alemán, Ana Beatriz Robalinho, Keigo Obayashi, Zoltán Szente, Shih-An Wang, and Diego Werneck Arguelhes.
Contributors are: Mark D. Rosen, Jorge M. Farinacci-Fernós, Justin Collings, Jean-Christophe Bédard-Rubin, Cem Tecimer, Ãngel Aday Jiménez Alemán, Ana Beatriz Robalinho, Keigo Obayashi, Zoltán Szente, Shih-An Wang, and Diego Werneck Arguelhes.
Francesco Biagi is Senior Assistant Professor of Comparative Public Law at the University of Bologna Department of Legal Studies. His latest publications include: European Constitutional Courts and Transitions to Democracy (Cambridge University Press 2020); âConstitution Drafting After the Arab Spring: A Comparative Overviewâ, 29 Indiana Journal of Global Legal Studies 1 (2022).
Justin O. Frosini is Associate Professor of Comparative Public Law at the Bocconi University in Milan and Adjunct Professor of Constitutional Law at Johns Hopkins University. He earned his law degree and his doctorate from the University of Bologna. His latest book is Dalla Sovranità del Parlamento alla Sovranità del Popolo. La rivoluzione costituzionale provocata dalla Brexit (Wolters Kluwer-Cedam, 2020).
Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign where he also serves as Director of the Program in Constitutional Theory, History and Law. He earned undergraduate and law degrees from Harvard University and his doctorate from Yale University.
Justin O. Frosini is Associate Professor of Comparative Public Law at the Bocconi University in Milan and Adjunct Professor of Constitutional Law at Johns Hopkins University. He earned his law degree and his doctorate from the University of Bologna. His latest book is Dalla Sovranità del Parlamento alla Sovranità del Popolo. La rivoluzione costituzionale provocata dalla Brexit (Wolters Kluwer-Cedam, 2020).
Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign where he also serves as Director of the Program in Constitutional Theory, History and Law. He earned undergraduate and law degrees from Harvard University and his doctorate from Yale University.
Acknowledgments
List of Tables
Notes on Contributors
Introduction
ââFrancesco Biagi, Justin O. Frosini and Jason Mazzone
Part 1
Framing the Problem
1âHistory Limit or License in Constitutional Adjudication?
ââMark D. Rosen
2âWhen History Requires the Use of History in Constitutional Adjudication
ââJorge M. Farinacci-Fernós
3âMemory as Mantle Evil Pasts and Judgesâ Power in Germany and South Africa
ââJustin Collings
Part 2
Historical Precedents and Inter-constitutional Interpretation
4âComparing Constitutional Historicities The Case of Precedents in Canada and the United States
ââJean-Christophe Bédard-Rubin
5âInter-constitutional Interpretation A Case Study of the Articles of Confederation
ââCem Tecimer
Part 3
A Matter of Narratives
6âJanusâ Third Face? The Spanish Constitutional Court at the Crossroads of History
ââÃngel Aday Jiménez Alemán
7âCompeting Narratives The Use of Historical Arguments in Constitutional Interpretation in Brazil
ââAna Beatriz Robalinho
8âManipulating Constitutional, Legislative and Judicial History Incremental Judicial Activism in the Japanese Supreme Court
ââKeigo Obayashi
Part 4
New Democracies and Illiberal Regimes
9âHow Not to Use History in Constitutional Interpretation The Aborted Resurrection of the Historical Constitution in Hungary
ââZoltán Szente
10âUsing the Authoritarian Past for Constitutional Interpretation in New Democracies The Example of the Taiwan Constitutional Court
ââShih-An Wang
âConclusion Which History, Whose Past?
ââDiego Werneck Arguelhes
Index
List of Tables
Notes on Contributors
Introduction
ââFrancesco Biagi, Justin O. Frosini and Jason Mazzone
Part 1
Framing the Problem
1âHistory Limit or License in Constitutional Adjudication?
ââMark D. Rosen
2âWhen History Requires the Use of History in Constitutional Adjudication
ââJorge M. Farinacci-Fernós
3âMemory as Mantle Evil Pasts and Judgesâ Power in Germany and South Africa
ââJustin Collings
Part 2
Historical Precedents and Inter-constitutional Interpretation
4âComparing Constitutional Historicities The Case of Precedents in Canada and the United States
ââJean-Christophe Bédard-Rubin
5âInter-constitutional Interpretation A Case Study of the Articles of Confederation
ââCem Tecimer
Part 3
A Matter of Narratives
6âJanusâ Third Face? The Spanish Constitutional Court at the Crossroads of History
ââÃngel Aday Jiménez Alemán
7âCompeting Narratives The Use of Historical Arguments in Constitutional Interpretation in Brazil
ââAna Beatriz Robalinho
8âManipulating Constitutional, Legislative and Judicial History Incremental Judicial Activism in the Japanese Supreme Court
ââKeigo Obayashi
Part 4
New Democracies and Illiberal Regimes
9âHow Not to Use History in Constitutional Interpretation The Aborted Resurrection of the Historical Constitution in Hungary
ââZoltán Szente
10âUsing the Authoritarian Past for Constitutional Interpretation in New Democracies The Example of the Taiwan Constitutional Court
ââShih-An Wang
âConclusion Which History, Whose Past?
ââDiego Werneck Arguelhes
Index
The volume is aimed both at an academic audience and practitioners interested in history, constitutional law, comparative constitutional law, comparative constitutional history, constitutional interpretation, and constitutional adjudication. It will also be suitable as a textbook for advanced undergraduate and postgraduate students