CZAS PRZECZYTANIA TEKSTU: 24 minut(y) / READING TIME: 24 minutes
During the period under review, new issues of 38 journals appeared (including one double issue). Despite applying a stringent selection, I was unable to reduce the list below 20 texts: such was the wealth of interesting subjects addressed in the academic journals covered by this review.
The review opens with a journal somewhat less frequently featured in these pages, CONSTITUTIONAL POLITICAL ECONOMY (36/2025), which published the article “Non-compliance as a determinant of constitutional change? A comparative study”. A. Schnelle sets out to answer a recurrent question: are constitutions whose provisions are not observed amended more frequently, and, if so, does this take the form of total constitutional change in the formal sense (the adoption of a new constitution), or rather partial change (constitutional amendment)? The empirical material is impressive: the study covers the constitutions of 170 countries between 1950 and 2018. Its point of departure is the so-called de iure/de facto gap, that is, the discrepancy between what a constitution guarantees and what is actually implemented in practice.
The findings are more interesting than one might expect. Constitutional non-compliance does not simply lead to more frequent changes to the constitutional text. In the case of partial constitutional change, no relationship was found between the degree of constitutional compliance and the frequency of amendment. In the case of total constitutional change in the formal sense, however, the relationship is clear: the greater the discrepancy between constitutional promises and reality, the greater the likelihood that the constitution will be replaced by a new one (amendments accounted for 90% of all constitutional changes recorded in the sample).
The gap in question most frequently concerned political and civil rights, including freedom of association, assembly, the media and expression: in other words, precisely those rights whose effective enjoyment and observance should make it easier for citizens to organise pressure for systemic change.
The author draws an interesting lesson for constitution-makers: excessively ambitious, “utopian” constitutional promises may ultimately work against the constitution itself. If they remain merely on paper, rather than strengthening constitutional durability they may increase the risk that the constitution will be replaced altogether. In other words, constitutional non-compliance does not lead to more frequent “repairs” of the constitution, but is associated with a greater likelihood of its complete replacement by a new one.
Constitutional change is also the subject of “The inconsistencies of the doctrine of unconstitutional constitutional amendments”, published in the September issue of the Brazilian journal REVISTA DE INVESTIGAÇÕES CONSTITUCIONAIS (Vol. 12, N. 3). Diego Pardo-Álvarez critically examines Yaniv Roznai’s influential theory of “unconstitutional constitutional amendments”. The starting point requires a brief explanation. According to Roznai, the constituent power of the political people (the nation) and the constitutionally established power to amend the constitution are not one and the same. The latter is a derivative power, entrusted by the people with only a defined competence. It therefore cannot use the amendment procedure to undermine the identity of the very constitution from which it derives its authority. The limits of permissible constitutional amendment may be expressly laid down, for example in the form of eternity clauses, but, according to Roznai, they may also follow from the very nature of the amending power and from the constitution’s “identity”. Hence, even an amendment adopted in full compliance with the prescribed formal procedure may be held unconstitutional and subjected to constitutional judicial review.
Pardo-Álvarez tests this construction against the example of Chile. The country’s 1980 Constitution was imposed by the Pinochet dictatorship, yet following the restoration of democracy it was progressively democratised precisely through successive amendments. Some of the elements altered were so fundamental that, in the author’s view, the original “constitutional identity” may effectively have been replaced by a new one. We therefore encounter a peculiar paradox: a doctrine designed to protect democracy against the authoritarian transformation of a constitution may at the same time impede the democratic removal of elements inherited from an authoritarian regime. The author identifies an even deeper inconsistency in the theory. If parliament, acting as the constitutional amending power, is merely a “delegate” of the people and is therefore not entitled to exceed the limits of the mandate conferred upon it, why should a constitutional court – itself likewise a constituted power – be entitled to discover limits to that mandate which the constitution does not expressly articulate? In the extreme case, a court purporting to defend the constituent power of the people begins itself to determine how the people may exercise that power. Pardo-Álvarez therefore concludes that Roznai’s theory provides a much stronger justification for judicial enforcement of expressly established limits on constitutional amendment than for judicial construction of implied ones.
We remain with the problem of constitutional change. In EUROPEAN CONSTITUTIONAL LAW REVIEW (Volume 21, Issue 3), András Jakab’s article “Constitution-Making Procedure and Legitimacy Maximisation: How Different Constitution-Making Procedures Satisfy Different Conceptions of Legitimacy” is particularly worthy of attention. It begins with the question of the optimal procedure for adopting a new constitution. The author challenges, however, the very assumption that there exists a single best and most democratic procedure capable of securing legitimacy for a new constitution. Much depends on what we mean by legitimacy in the first place. Jakab distinguishes three principal forms: substantive legitimacy, deriving from the content of the constitution; formal legitimacy, associated, inter alia, with the source of authority and the legality and fairness of the procedure; and outcome legitimacy, dependent on the constitution’s social effects, stability and actual level of support.
The comparison between these categories and different methods of constitution-making is particularly revealing: adoption by parliament, by a specially elected constituent assembly, by experts, through “round-table” negotiations, with citizen participation, or by means of a referendum. A procedure that strengthens one form of legitimacy may simultaneously weaken another. Full transparency, for example, which we ordinarily regard as a virtue of the process, may make political compromise more difficult. Experts may be capable of producing a technically superior text, but their involvement weakens the direct connection between the process and the citizenry. Broad public participation, in turn, may strengthen a sense of co-authorship of the constitution, but does not guarantee a high-quality text and, in deeply polarised societies, may further exacerbate existing divisions.
The conclusions concerning direct democracy are particularly interesting. The observation is by no means novel in the literature that, while a referendum strengthens the legitimacy flowing from a direct decision of the citizenry and may increase citizens’ identification with the constitution, it is not an instrument particularly well suited to building compromise. Under conditions of intense polarisation, a binary choice may further sharpen the conflict. The author similarly cautions against idealising citizen participation in constitution-making. The actual impact of public consultation on the final text may be limited, particularly where political parties retain a strong position.
The author therefore proposes a certain sequence: the process should begin by combining expert knowledge with negotiations among the principal political forces; citizens should then be involved in consultations on the draft; legal continuity should be preserved; and only at the end should a referendum, if any, be held. In this account, neither parliament nor a specially elected constituent assembly enjoys any particular advantage per se. The author’s most important caveat, however, goes further still: sometimes the best procedure for adopting a new constitution is… not to adopt one at all. In a deeply polarised society, it may be preferable to postpone the entire undertaking and gradually modify the existing constitution, its interpretation, ordinary legislation and political practice. There is no universal procedure capable of guaranteeing the legitimacy of a new constitution irrespective of the surrounding political circumstances. Read alongside the findings discussed in the preceding article, Jakab’s conclusions bring the complexity of the problem into particularly sharp relief.
In the same issue of EUROPEAN CONSTITUTIONAL LAW REVIEW, another article caught my attention: Marco Bassini’s “Speech without a Speaker: Constitutional Coverage for Generative AI Output?”. Bassini poses a highly topical, if at first sight somewhat provocative, question: can content generated by ChatGPT fall within the constitutional ambit of freedom of speech when there is, strictly speaking, no “speaker” to whom the expression can be attributed? The author proposes a shift in perspective. Rather than asking whether the author is the programmer, the system provider or the artificial intelligence itself, he shifts the focus to the recipient and the recipient’s right to receive information. This is an intriguing move. Freedom of expression encompasses not only the right to speak, but also the human right to receive information. Bassini examines the issue under both the First Amendment to the US Constitution and Article 10 of the European Convention on Human Rights, concluding that there are insufficient grounds for excluding AI-generated content from the scope of constitutional freedom of expression solely because of its “non-human” origin.
This does not, of course, mean conferring “human rights” upon ChatGPT. The author distinguishes between bringing expression within the ambit of freedom of speech (constitutional coverage) and granting it constitutional protection (constitutional protection). Not every item of AI-generated content must therefore be protected, and the state remains free to combat unlawful content or regulate particular applications of AI. The real issue lies elsewhere: by restricting access to AI-generated content, the state may interfere with the informational freedom of its human recipients. The question “Does ChatGPT have freedom of speech?” is thus replaced by a considerably more interesting one: may the state restrict what a human being is allowed to read merely because the text was created by a machine rather than by another human being?
The next article comes from the Spanish journal CORTS. ANUARI DE DRET PARLAMENTARI (39/2025). In “El diputado no adscrito: problemática de la normativa y jurisprudencia de aplicación”, J.C. Navarro Ruiz examines the interesting problem of the status of the non-attached deputy: a parliamentarian who has left, or been expelled from, the political party or parliamentary group with which he or she began the term of office. The problem is particularly interesting in Spain, where elections are held using closed and blocked party lists. As early as 1983, the Constitutional Court established that the parliamentary mandate belongs to the elected representative, not to the party or parliamentary group. Leaving or being expelled from a party cannot therefore entail the loss of one’s seat.
This, however, gave rise to another problem: how is the phenomenon of political “floor-crossing” (transfuguismo), and the benefits that may be derived from it, to be countered if the parliamentarian cannot be deprived of the mandate? The response was the construction of the non-attached deputy (diputado no adscrito), whose status is now regulated in most parliaments of the autonomous communities, although it is still absent from the rules of procedure of the Cortes Generales and the parliaments of Asturias, Galicia, Murcia and the Basque Country.
The crux of the problem is to strike a balance between combating transfuguismo and respecting the constitutional principle of the free mandate and the rights of parliamentarians. The Spanish Constitutional Court permits restrictions on the rights of a non-attached deputy, but these may not impair the essence of the representative function. A parliamentarian must retain, inter alia, the ability to participate in law-making, government scrutiny and parliamentary debate. Restrictions should be construed narrowly, properly justified and proportionate. At the same time, the Court regards the prevention of political floor-crossing as a constitutionally legitimate aim.
The critical part of the article is the most interesting. The author points to a paradox: allowing a party’s decision to expel one of its members to have direct consequences for that person’s parliamentary status effectively transfers part of the decision-making concerning the exercise of the parliamentary mandate outside parliament, to a political party which, after all, is an association governed by private law. Moreover, not every “defector” has in fact betrayed the voters. It may be the party leadership, rather than the deputy, that has changed its political position, for example as a result of entering a post-election coalition. Automatically treating every such case as transfuguismo may therefore produce outcomes difficult to reconcile with the principle of the free mandate.
In the latest issue of ELECTION LAW JOURNAL: RULES, POLITICS, AND POLICY (Volume 24, Issue 3), my attention was drawn to “Are Dead People Voting by Mail: Evidence from Washington State Administrative Data”. Its nine authors set out to test empirically one of the most frequently voiced allegations concerning postal voting in the United States (and, I might add, not only there): whether ballots sent to persons who die in the meantime are taken over by others and cast as valid votes. The study concerns Washington State, where voting by mail is universal. The authors matched data on counted ballots against official death records, additionally verifying dates of birth against online obituaries in order to reduce the risk of mistakenly identifying two different individuals as the same person.
The scale of the study was enormous: it covered approximately 4.5 million voters between 2011 and 2018. Across this entire population, the authors identified only 14 cases in which a ballot may have been cast suspiciously long after the voter’s death. This amounts to 0.0003% of the voters studied. Importantly, the authors do not even claim that electoral fraud occurred in those 14 cases. Some may be attributable to clerical errors or may concern different people sharing the same first name, surname and date of birth.
The authors’ conclusion is therefore unequivocal, while at the same time carefully confined to the system studied: in Washington State’s universal vote-by-mail system, cases in which ballots associated with deceased voters are counted are exceedingly rare.
In GERMAN LAW JOURNAL (Volume 26, Issue 2), my attention was drawn to “Overcoming Democratic Short-termism through Constitutional Law?—The Difficulty of Making the Constitutional Veto Work in Climate Protection Cases”. Gabriele Britz, a former Justice of the German Federal Constitutional Court, addresses the problem of “democratic short-termism”: governments and parliaments operate according to the rhythm of relatively short electoral terms and therefore have a natural tendency to take account of the interests of present-day voters at the expense of those who will bear the long-term consequences of decisions made today. For the author, climate protection provides a particularly vivid illustration of the problem, because postponing costly measures may not only burden future generations, but also curtail their freedom and leave them progressively less room to make political choices of their own.
The constitution should provide a counterweight to such short-termism. The author illustrates this primarily by reference to Article 20a of the German Basic Law and the Federal Constitutional Court’s landmark 2021 climate decision. In that judgment, the Court developed the concept of an “intertemporal safeguard of freedom”: the present generation should not consume so much of the permissible “emissions budget” that future generations are left with the necessity of drastic emissions reductions and, with them, far-reaching restrictions upon freedom.
Why, then, are even strong constitutional courts limited in what they can achieve in this field? Because courts are particularly effective as blocking institutions – employing what the author calls a “constitutional veto” – and may invalidate unconstitutional legislation; in the field of climate protection, however, that alone accomplishes relatively little. Decarbonisation requires the active design and implementation of an extraordinarily complex transformation encompassing legislation, taxation, investment, administration and numerous sectors of the economy. A court may find that the state is doing too little, but it cannot take over from parliament and government the direction of the entire transformation.
The author envisages a more realistic role for the courts: they can require the legislature to establish transparent, long-term decarbonisation plans, interim targets and emissions-reduction pathways, and subsequently review compliance with them. Ultimately, however, constitutions and courts can only mitigate the effects of democratic short-termism. They cannot substitute for the political willingness to act. As the author puts it, courts can help, but they cannot avert climate catastrophe by themselves if climate-protection measures encounter mass public resistance.
In the biannual REVISTA ESPAÑOLA DE DERECHO CONSTITUCIONAL (135, septiembre-diciembre 2025), my attention was drawn to “Parlamento y ciencia: asesoramiento científico al legislador como mandato constitucional”. Federico de Montalvo Jääskeläinen advances an unequivocal thesis: scientific advice to parliament is not merely a means of producing better legislation but, in certain circumstances, a constitutional requirement. In a world in which legislators regulate artificial intelligence, biotechnology, public health and the environment, they cannot make decisions while ignoring the available scientific knowledge. The author derives this obligation primarily from Article 9(3) of the Spanish Constitution, which prohibits arbitrariness on the part of public authorities. Legislative decisions remain political, but they should rest on rational foundations; where scientific facts are materially relevant, those foundations must include the best available knowledge.
The author thereby engages with a particularly interesting boundary between democracy and technocracy. Science is to provide knowledge, assess risk and identify possible consequences, but it cannot replace political decision-making. Parliament may even depart from expert recommendations, but it should be capable of explaining rationally why it has done so. As the author aptly puts it, evidence-based policy must not become evidence-as-policy. The ultimate decision belongs to the democratically legitimated legislature because, alongside scientific knowledge, it must take into account values, social interests, costs and the acceptability of the measures adopted.
The article also contains a highly practical parliamentary dimension. The author describes the Oficina de Ciencia y Tecnología (Oficina C) established at the Spanish Congress of Deputies, which prepares concise briefings for parliamentarians on the basis of academic literature and consultations with experts. He also points to counterparts in other parliaments, including the United Kingdom’s POST, Germany’s TAB, France’s OPECST and STOA in the European Parliament. The constitutional proposition nevertheless remains the most interesting: the legislature’s freedom of political judgement does not entail freedom from facts. Science is not to make the law, but in matters requiring specialist knowledge, consciously disregarding scientific findings may shift a parliamentary decision from the realm of permissible political discretion towards constitutionally prohibited arbitrariness.
We remain in the realm of parliamentary expertise. In THE JOURNAL OF LEGISLATIVE STUDIES (Vol. 31, No. 3), my attention was drawn to “Factors influencing the impact of ex-post legislative evaluations: a scoping review”. The four authors ask what determines whether assessments of how legislation operates after entering into force actually influence subsequent legislative decisions. On the basis of a review of the literature, they identify three groups of factors: the political and institutional context, the quality of the evaluation itself, and interaction between researchers and those commissioning and receiving the evaluation.
Their principal conclusion is that a good evaluation need not be an effective one. Even a methodologically excellent study may have no impact if its findings emerge at the wrong moment or if parliament and government have no interest in using them. The feasibility of recommendations also matters: proposals involving relatively modest changes to existing law are more likely to be implemented. The authors also stress the need to maintain a balance between researchers’ independence and their contact with decision-makers. Excessive proximity threatens the credibility of an evaluation, while complete separation may leave its findings without practical significance.
In short, ex post evaluation does not improve legislation by itself: there must also be the institutional and political willingness actually to make use of its findings.
It is fairly widely assumed – or, perhaps more accurately, this is a proposition often promoted by liberal media – that populist politicians use simpler language than other politicians. Rebecca C. Kittel, author of “Simply Speaking? Language Complexity among (Non-)Populist Actors in Parliamentary Debates” in GOVERNMENT AND OPPOSITION (60), sets out to test this proposition empirically. The premise is straightforward: if populism presents political reality as a conflict between “ordinary people” and elites, and readily offers simple solutions to complex problems, one might expect populists to use simpler language as well. Previous research has produced conflicting results, so the author uses transcripts of Bundestag debates from 1991 to 2021, enabling her additionally to compare right-wing and left-wing populism.
The empirical material is impressive: after short interventions, questions and interruptions were excluded, the analysis covered 132,778 parliamentary speeches from seven complete Bundestag terms. Linguistic complexity was measured primarily using the LIX readability index, which takes account, inter alia, of sentence length and the proportion of long words. The author also compared the results with other measures and controlled for characteristics of individual deputies and the subject matter of the debates.
The results may fairly be described as surprising. The study does not confirm that parliamentarians belonging to populist parties use simpler language. In the case of right-wing populism, the opposite was true: the AfD emerged as the party using the most linguistically complex language during the nineteenth Bundestag term (2017–2021).
The study yields several other interesting findings. The language of the German parliament became markedly simpler over the three decades studied. The simplest language was used in debates on budgets and taxation, while the most complex was used in debates on civil rights; moreover, the more frequently a subject appeared in parliamentary debate, the simpler the language became – with civil rights again constituting the exception. The author suggests that, when addressing particularly salient topics, parliamentarians may in fact be speaking more directly to a wider public rather than solely to their fellow deputies.
The author rightly cautions that she examined only linguistic, not conceptual, complexity, and only debates in the German Bundestag. One might therefore say that populist simplification of politics need not entail simplification of language. It is perfectly possible to portray the world through simple divisions and simple prescriptions while using language every bit as complex as, or even more complex than, that of one’s political competitors.
In the same issue of GOVERNMENT AND OPPOSITION (60), another article worth noting is “No Longer the Only Game in Town? Immigration, Authoritarianism and the Future of Democracy in the West” by Fatih U. Cetin and Burak Demir. The authors begin with Juan Linz and Alfred Stepan’s classic formulation that democracy is consolidated when it becomes, for citizens, the titular “only game in town”. They ask whether this remains the case in established Western democracies, examining the relationship between immigration, anti-immigrant attitudes and willingness to accept dictatorship or military rule. Importantly, rather than examining the electoral performance of radical parties, they look directly at citizens’ preferences regarding forms of government.
The study covered 17 established Western democracies between 2008 and 2020. The results reveal a small but statistically significant association between a larger immigrant share of the population and stronger anti-immigrant attitudes, which in turn are associated with greater acceptance of authoritarian forms of government. This is therefore not a simple relationship of “more immigrants = more authoritarianism”. Attitudes towards immigrants constitute the crucial intervening factor.
Perhaps the most interesting finding concerns people with a low authoritarian predisposition. Whereas individuals with a high authoritarian predisposition tend to be relatively hostile towards immigrants regardless of the level of immigration, as the immigrant share increases the attitudes of less authoritarian individuals begin to converge with theirs.
Nor do the authors claim that Western democracies face imminent collapse. Their conclusion is subtler: the spread of anti-immigrant attitudes may increase social openness to non-democratic alternatives. Democracy thus remains “the only game in town”, but for some citizens other games are becoming less unthinkable.
From Europe, we cross the Atlantic for a moment to consider yet another instalment in the long-running debate between “originalists” and proponents of the “living Constitution”. It is one of the more intellectually engaging disputes in American constitutionalism and, despite the volumes already written on the subject, it retains both its intellectual appeal and its contemporary relevance. In UC LAW CONSTITUTIONAL QUARTERLY (Volume 52, Number 3), my attention was drawn to “Originalism’s Stare Decisis Problem: The Place of Precedent in Theories of Interpretation”. The starting point is the doctrine of stare decisis, under which courts adhere to prior decisions. It is one of the foundations of common-law systems, particularly in the relationship between lower and higher courts, whereas in civil-law systems precedent does not, as a rule, possess the same formally binding force. Arjan S. Heir addresses one of the fundamental problems of American originalism: if the meaning of the Constitution was essentially fixed at the time of its adoption, why should a judge respect a precedent which, in that judge’s view, rests upon an erroneous interpretation of that original meaning? Yet stare decisis requires precisely such a decision to be recognised and preserved. The author argues that originalism is caught in something of a trap. If it accords strong protection to precedent, it permits practical considerations to prevail over the Constitution’s original meaning and restores the very judicial discretion that originalism was intended to constrain. If, by contrast, it readily discards precedent, a problem of Supreme Court legitimacy arises: if the Constitution’s meaning does not change, overruling an earlier precedent amounts, in effect, to a public declaration that the previous Court simply got it wrong.
Interestingly, the author offers a possible solution to this dilemma. He proposes the concept of a “barely evolving Constitution”: a constitution whose meaning is, as a rule, determined by the original understanding of the text, but which may nevertheless evolve in exceptional circumstances. This would help explain the status of so-called superprecedents: foundational precedents so deeply embedded in law and society that they have become part of the constitutional order, even if they are difficult to justify on purely originalist grounds. The dispute between originalism and the living Constitution thus shifts from the question “Can the meaning of the Constitution evolve?” to the considerably more interesting question: “Under what exceptional circumstances may it change?”
Debate with originalism – or conducted in its shadow – appears with some regularity in American constitutional journals. Another example is William J. Aceves’s “Critical Constitutional Law and the Alito Palimpsest”, published in (PENN LAW) JOURNAL OF CONSTITUTIONAL LAW (Vol. 27:4, 2025). The author proposes a rather unusual way of reading constitutional jurisprudence: as a palimpsest. Historically, a palimpsest was a piece of parchment from which an earlier text had been erased so that a new one could be written over it, while traces of the earlier writing often remained visible beneath the new. Aceves employs this metaphor in his analysis of Dobbs v. Jackson Women’s Health Organization, in which the US Supreme Court rejected the earlier line of precedent established by Roe v. Wade and Planned Parenthood v. Casey concerning the constitutional right to abortion.
In the case of Dobbs, the metaphor works particularly well for an unusual reason: before judgment was delivered, an initial draft of Justice Samuel Alito’s opinion was leaked. The draft, of course, had no legal force – it was neither a judgment nor a precedent – but it now makes it possible to compare an earlier version of the Court’s reasoning with the final text. Aceves takes advantage of this rare opportunity, but his argument is broader. In his view, constitutional law itself resembles a palimpsest: successive judgments seek to “erase” earlier interpretations and rewrite the law, even though traces of previous layers remain. He is particularly interested in the originalist invocation of “history and tradition” in Dobbs. History, he argues, is not a neutral repository from which a single original answer can simply be retrieved; it too is subject to selection, reinterpretation and the superimposition of successive layers.
Aceves also advances a broader methodological proposal. He seeks to turn the metaphor of the palimpsest into an instrument of critical constitutional law: when reading a judgment, we should examine not only what appears in its text, but also what has been erased, which earlier layers continue to show through, and how the court constructs the history upon which it subsequently relies. Dobbs is therefore primarily a case study. The article’s central thesis reaches considerably further: the search for a single “original” historical answer may be illusory if constitutional law and its history themselves resemble a text repeatedly erased and rewritten.
I would very much like to read a response to this article from a proponent of constitutional originalism. If I find one, I shall certainly mention it in a future review.
In the latest issue of INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW I-CON (Volume 23, Issue 4, 2026), my attention was drawn to Terry Skolnik’s “Two cultures of justification in constitutional law”. The author begins with the familiar distinction in constitutional theory between a “culture of authority” and a “culture of justification”. In the former, state action is legitimated primarily by the decision-maker’s legal authority to act. In the latter, authority alone is insufficient: the state must also rationally explain why its interference with individual rights is justified. The spread of proportionality review is presented by the author precisely as a manifestation of the transition from the former culture to the latter.
The author seeks to broaden the concept of “justification”. Traditionally, it has been understood primarily in the sense of persuasion: the state must put forward logical and rational arguments that are open to challenge. Drawing inspiration from concepts familiar to criminal law, Skolnik adds a second meaning: moral permissibility. On this account, restricting a fundamental right is prima facie wrongful, and it is for the state to demonstrate that, in the particular circumstances, doing so was permissible. Proportionality review is therefore not merely a technique for balancing competing values, but a means of determining whether the state can justify the restriction it imposes upon the individual.
The author interestingly associates the individual stages of proportionality review with particular dangers posed by public power. The requirement of a legitimate aim is intended to guard against direct discrimination and degradation; the rational connection between means and ends, against arbitrariness and pretextual motives; necessity, against excessive interference; and the final balancing stage, inter alia, against the instrumentalisation of individuals and indirect discrimination.
In short, on the author’s account, the principle of proportionality acquires a particularly clear rationale: a state restricting human rights must demonstrate not only that its decision is rational, but also that it was entitled to act in that way.
From the African constitutional-law literature, an article published in NNAMDI AZIKIWE UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND JURISPRUDENCE (No. 16(2)), “‘Pardon’ as an Escalating Impediment to Criminal Justice in Democracy”, is worth noting. Ibingo Inyo Evans examines a classic institution of constitutional law – the power of pardon – and asks whether a prerogative originating in the monarchical era, when the ruler essentially concentrated the totality of state power, can be reconciled with contemporary democracy, the rule of law and the separation of powers. The author draws extensively on history and examples from a range of legal systems.
The point of departure is interesting because Evans does not deny the valuable functions of the pardon. He presents it as a form of “safety valve” capable of correcting unjust convictions or excessively harsh sentences, and also cites examples of its use to ease political conflict, reduce prison overcrowding or remedy the effects of unduly repressive laws. The problem begins when the decision to grant a pardon serves the interests of the president personally, his associates or a particular group. From this perspective, the article compares examples from Nigeria, Russia, Peru and the United States, devoting particular attention to American presidential practice.
Evans argues that an unlimited power of pardon retains an element of the monarch’s former personal prerogative which sits uneasily with the democratic principle that the executive is itself subject to law. The author does not, however, advocate the immediate abolition of the institution. He points to examples of mechanisms limiting arbitrariness in the exercise of the pardon power, referring to Indian arrangements, under which clemency decisions may be subject to judicial review, and Argentine restrictions concerning crimes against humanity. In conclusion, he advocates, inter alia, the involvement of an independent body in the clemency process, the possibility of judicial review, and a constitutional prohibition on pardons in cases involving the president personally, members of the president’s family, or close associates.
Against the background of the author’s analysis, one may therefore pose an important constitutional question: in a democratic state, is the problem the very existence of the power of pardon, or rather the ability of the executive to exercise it without sufficient mechanisms of control?
In PERSPECTIVES ON POLITICS (Vol. 23, No. 3), my attention was drawn to “Proportional Non-Voter Sortition: Legislative Inclusion for Non-Voting Citizens”. Marcus Carlsen Häggrot and Chiara Destri begin with a question that is rarely asked at all: what, exactly, should an electoral system do with the votes that were never cast? At present, electoral abstention is simply calculated and reflected in turnout figures, but it has no effect on the allocation of parliamentary seats. The authors propose a radically different solution: a proportion of seats in parliament corresponding to the percentage of citizens who did not vote would be filled by lot from among those non-voting citizens themselves. They call this model Proportional Non-Voter Sortition.
The idea is certainly intriguing. With a turnout of, say, 70%, the remaining 30% of citizens would not simply disappear politically after the election: a corresponding proportion of parliamentary seats would be allocated to representatives selected by lot from among them, enjoying the same rights and duties as elected parliamentarians. A person selected could decline the mandate, in which case the draw would continue. The authors are therefore not proposing to replace elections with a lottery, but to supplement electoral democracy with a mechanism whose importance would automatically diminish as turnout increased and would virtually disappear at turnout levels approaching 100%.
Behind this institutional thought experiment lies a more serious problem of representation. Non-voters are not a random miniature of society as a whole. Young people, those with lower levels of education and the economically disadvantaged are, among others, overrepresented among them, while the studies cited by the authors indicate that in most countries the ideological preferences of voters and non-voters differ significantly. Moreover, the present system gives parties relatively little incentive to court citizens who are persistently disengaged from elections. Under the proposed model, every citizen whom parties failed to persuade to vote would increase the proportion of seats allocated to randomly selected parliamentarians, thereby reducing the parties’ influence within the chamber. The authors therefore anticipate that parties would acquire a strong incentive to remove barriers to voting and to take seriously the views of groups they have hitherto been able to ignore politically.
Perhaps the most interesting aspect of the article is the change of perspective it brings to electoral abstention itself. Not voting need not mean that a citizen has renounced political representation. The authors treat their admittedly rather revolutionary proposal as an experiment in democratic theory intended to provoke discussion of a surprisingly neglected question: why, in a representative democracy, do we represent only those citizens who actually took part in the election?
For the September issue of the French POUVOIRS. REVUE FRANÇAISE D’ÉTUDES CONSTITUTIONNELLES ET POLITIQUES (n° 194), I shall depart from my usual rule of discussing one or two articles from each journal and recommend the entire issue. It is devoted wholly to a concept that appears only rarely in constitutional journals: honour. The subject may seem – particularly from a Polish perspective – almost self-evidently positive. We associate honour with the chivalric ethos, keeping one’s word, courage, public service, patriotism and responsibility for one’s own conduct. Yet the contributors to Pouvoirs remind us that, from a liberal and democratic perspective, the concept is by no means unambiguously positive. Historically, honour was bound up with status and hierarchy: it defined an individual’s place within a group, justified privilege, but also the subordination of the weaker and the control of women. The editors therefore provocatively ask whether democratic honour really differs from its aristocratic predecessor, or merely conceals, in a new guise, the old desire for social recognition and superiority.
The classic liberal opposition contrasts hierarchical honour with egalitarian dignity: dignity belongs equally to every human being, whereas honour must be earned, defended, and can be lost. Yet it is precisely here that the difficulty arises. Honour need not signify only privilege derived from birth or status. It may also mean demanding more of oneself than the law requires, accepting responsibility for one’s word and one’s office, and being prepared to bear the consequences of conduct regarded as dishonourable. Laetitia Falcon de Longevialle shows, moreover, that honour and its accompanying sense of shame, although criticised as instruments of social subordination, can also be deployed for emancipatory purposes.
From this perspective, a certain constitutional paradox is particularly interesting. Montesquieu regarded honour as the principle of monarchy, contrasting it with republican virtue. Anne Simonin shows, however, that the French Revolution did not eradicate honour at all: it began to construct a republican variant of it, while after the Second World War the concept once again assumed an important place in republican political language. One may therefore pose a question inverse to the liberal critique: can democracy genuinely dispense with some conception of honour? The law can prescribe the duties of a president, minister, parliamentarian or judge and establish sanctions for their breach, but it cannot codify everything that we expect of a holder of public office.
The issue as a whole demonstrates the remarkable vitality of the concept: from women’s honour, through the honour of politicians and the protection of reputation in press law, to patriotism, state decorations and the withdrawal of the Légion d’Honneur. Thomas Hochmann even examines the cases of Francisco Franco and Nicolas Sarkozy, which confront the state with a peculiar problem: if the state can officially bestow honour, it must also decide whether, and when, it may take it away. Ultimately, this issue of Pouvoirs may therefore be read not only as a critique of honour, but also as a critique of an overly facile critique of honour. The replacement of the old, status-based conception of honour by universal human dignity was one of the achievements of modern constitutionalism. It is not obvious, however, that a society in which dignity belongs to everyone does not simultaneously need a concept capable of expressing standards of conduct that may reasonably be expected of a person – and especially of a holder of public office – even though they cannot be fully enforced by statute.
No review of mine would be complete without something on lobbying. In the October issue of POLITICAL SCIENCE & POLITICS (Vol. 58, No. 4), my attention was drawn to “Conflating Lobbying and PACs: The Surprisingly Low Overlap in Organizational Lobbying and Campaign Expenditures”. Alexander C. Furnas, Timothy M. LaPira and Clare Brock address a common misconception in American debate: treating lobbying expenditure and campaign financing through PACs as two manifestations of the same phenomenon, usually labelled “money in politics”. Analysing federal data from 1998 to 2018, the authors ask whether organisations engaged in lobbying are in fact generally the same organisations that financially participate in candidates’ election campaigns.
The result is surprising. Only 6.3% of all organisations covered by the study (3,427) both lobbied and made contributions through affiliated PACs (Political Action Committees) over the entire period analysed. Approximately 34,000 engaged in lobbying without making such contributions, while 9,500 financed campaigns but did not lobby.
There is, however, an important qualification: the relatively small number of organisations pursuing both strategies are among the largest players. Approximately 75% of all lobbying expenditure came from organisations that also had a PAC.
In other words, most lobbying organisations do not simultaneously finance campaigns, but most of the money spent on lobbying comes from organisations that do both.
The authors argue that lobbying and campaign finance are legally and factually distinct modes of organisational participation in politics, and that placing both in a single box labelled “money in politics” obscures more than it explains. As an example, they point to the US Honest Leadership and Open Government Act, which, under the banner of increasing lobbying transparency, required certain lobbyists also to disclose campaign contributions – even though those contributions constitute electoral activity rather than lobbying.
In SWISS POLITICAL SCIENCE REVIEW (31/2025), my attention was drawn to “From Old to New Colonial Dependencies: Public Perceptions of Chinese Surveillance Cameras in Central Asia”. Jasmin Dall’Agnola examines how inhabitants of Central Asia perceive the increasingly widespread use in public spaces of surveillance systems produced by Chinese companies. The empirical material is interesting: 105 individual interviews and 40 focus-group interviews conducted in 2022 in Almaty, Bishkek, Dushanbe and Tashkent. One important limitation should, however, be noted from the outset: the study concerned Russian-speaking residents of major cities and was not representative of the populations of the four countries as a whole. The author herself expressly cautions against such generalisation.
The findings may be surprising from the perspective of European debates on privacy. Most interviewees viewed surveillance positively, primarily as a means of enhancing security and contributing to the modernisation of cities. Additional data from the Central Asia Barometer cited by the author indicate that in 2022 more than 90% of respondents in Uzbekistan, Kazakhstan and Kyrgyzstan, and 80% in Tajikistan, expressed a positive view of surveillance cameras intended to reduce crime. Respondents were also aware of the Chinese origin of the technology and often explained its popularity in highly pragmatic terms: a favourable price-to-quality ratio and a high level of technological sophistication. At the same time, concerns were expressed about privacy, data security and growing technological dependence on China.
The most debatable aspect is the interpretation of these findings. Dall’Agnola proposes reading them through the prism of two overlapping “colonial dependencies”: the Soviet legacy of normalised state surveillance and the prioritisation of collective security over privacy, and the region’s newer economic and technological dependence on China. The material collected certainly presents a picture of considerable acceptance of surveillance and a strong position for Chinese technology. But does this justify describing the relationship between Central Asian states and China as a new form of “colonial dependency”? That is a considerably more far-reaching proposition – and perhaps precisely why the article is particularly worthy of discussion among those interested in the subject.
Carl Schmitt is unquestionably an ambiguous figure. A gifted, indeed outstanding, constitutional theorist who, at a certain point in his life, crossed over to its darker side and became an apologist for Nazism. His earlier work, dating from the Weimar Republic, has enjoyed renewed popularity in Poland over the past decade. References to Schmitt the constitutional theorist of that period can even be found in the latest Polish textbooks on constitutional law. His “Nazi” period, for obvious reasons, does not serve as a point of reference for constitutional scholarship or teaching and is generally passed over. This is precisely what makes “El enemigo total: una aproximación al pensamiento de Carl Schmitt bajo el signo del Tercer Reich (1931–1945)”, published in HISTORIA CONSTITUCIONAL (n. 26), so interesting. The article examines the most uncomfortable period in Schmitt’s intellectual career: from the years immediately preceding the Nazi seizure of power, through his active alignment with the regime, to the end of the Third Reich. The author deliberately seeks neither to “cancel” Schmitt on account of his Nazi past nor to detach his theory from that past as though it were irrelevant. Examining Schmitt’s writings from 1931 to 1945, he asks above all what happened during this period to the key concepts of Schmitt’s theory of the state, democracy and the political.
Particularly interesting is the reconstruction of the path from the critique of the Weimar Republic to the justification of the “total state”. Schmitt rejected liberal pluralism, the neutrality of the state and the competition of multiple loyalties, opposing to them a vision of a politically homogeneous people whose unity finds expression in decision and plebiscitary legitimation. In 1933, in Staat, Bewegung, Volk, he presented the Nazi order as a tripartite structure of state, National Socialist movement and people, in which the movement – above all the NSDAP – was to constitute the politically directive element permeating both state and people. Even more striking is the later Schmittian formula cited by the author, according to which democracy “belongs” to the totalitarian state. Only such a state, on this view, can fully realise democracy’s postulates. The condition of this totalisation is the production of homogeneity through the identification of an enemy – external, but also internal.
Most interestingly, however, Schmitt’s doctrine of the Nazi state contains a considerable number of internal contradictions. Schmitt simultaneously seeks political homogeneity and a world conceived as a pluriversum of different peoples; a total state and a tripartite order of state, National Socialist movement and people; and, finally, a sovereign-leader who takes the ultimate decision, even though towards the end of the war Schmitt himself described the Third Reich as a system in which, alongside Hitler, there operated an informal circle of actual centres of power. The author therefore proposes that Schmitt be read “with Schmitt against Schmitt”: his Nazi writings cannot be detached from their author’s political choice, yet analysing their contradictions remains valuable for constitutional history – particularly for understanding how the critique of pluralism, parliamentarism and liberal neutrality could be transformed into a juristic justification of the totalitarian state.
