ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

1 CONSTITUTIONALISM AND
CONSTITUTIONAL INTERPRETATION
Panel formed with individual proposals.
Participants
Name of Chair
Room
Or Bassok
Mark A. Graber
James Grant
Scott Stephenson
Scott Stephenson
UL6 2070A
Or Bassok: Beyond the Horizons of American
Constitutional Thinking
American constitutional debate is controlled by
certain paradigms that block the ability to think beyond
them. In this paper, I expose two of these paradigms
and examine the way in which they control and limit
American constitutional thinking.
Mark A. Graber: Race and American Constitutional
Exceptionalism
American exceptionalism in American political
development and in comparative constitutional law
suffer from a similar blind spot. Just as Rogers Smith
pointed out that the classical works in American political
development tended to confine race in ways
that discounted the substantial influence of race on
American constitutional development, so the classical
works on American constitutional exceptionalism tend
to confine race to the margins of the American constitutional
experience, overlooking the powerful impact
race has had over almost all doctrines of American
constitutional law. This paper notes one difference
between the United States and many constitutional
democracies is that while much constitutionalism in
Europe has been forged by struggles over the meaning
of an anti-fascist imperative, much constitutional
development in the United States is informed by racist
and anti-racist imperatives.
my argument, including that it allows too much power
for judges to change the constitution, and that it does
not sufficiently allow for variations among countries in
the scope of judicial power.
Scott Stephenson: The Rise and Recognition of
Quasi-Constitutional Law
The common law world of constitutionalism is often
viewed through the lens of ‘regular constitutional law’,
distinguishing those countries that have entrenched
constitutions enforced by judicial review from those
that do not. In this paper, I study the influence ‘quasiconstitutional
law’, statutes that purport to alter a fundamental
feature of the system of government and that
are enacted through the ordinary lawmaking process,
has on this distinction. In this paper, I argue, first, that
legislators across the common law world increasingly
turned to quasi-constitutional law to pursue changes
to their systems of government in the second half of
the twentieth century and, second, however the appearance
of commonality and convergence is potentially
misleading because the absence or presence
of regular constitutional law affects the way in which
and the extent to which the judiciary recognizes quasiconstitutional
law.
James Grant: Constitutional Foundations, Law
and Interpretation
This paper contributes to the debate over whether
judges should appeal to foreign decisions and moral
reasoning to change their constitutions through the
guise of interpretation. First, I defend HLA Hart’s argument
that the constitutional foundations of legal
systems consist of extra-legal customary rules, which
exist because they are practiced by officials and ‘accepted’
by them (in Hart’s special meaning of acceptance).
Secondly, I argue, consistently with Hart’s
account, that when judges interpret the constitution
in creative ways, they do not necessarily act in a way
that is unjustified. Moreover, their action may even be
considered constitutional, if their interpretation, though
novel, is nonetheless generally accepted by officials.
The paper also responds to a number of objections to
Concurring panels 27