ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

Matej Avbelj: On the Nature of EU Constitutionalism:
Migration of Constitutional Ideas v.
Migration of People with Different Ideas
Today even the EU’s unwritten constitution is put to
a severe test. Its underlying cosmopolitan ethos and its
constitutive migration of constitutional ideas seem not
to be well adapt to actual cosmopolitanism, which has
been introduced in the European constitutional space
by way of massive migration of people with different
ideas. Again, and to a great surprise for many, the European
Union has resorted back to borders. This raises
the following question: is ring-fencing the EU from the
regions of humanitarian crisis a constitutional solution,
is it even a constitutional necessity – part and parcel
of EU constitutional ethos – or is it, on the other hand,
an unconstitutional and illegal step that ought to be
resisted and prevented. It is expected that the answer
to this question will shed some light on the true nature
of the EU constitutionalism.
Jernej Letnar Černič: Exploring Fear of the Other
in Central and Eastern European Countries
The on-going European refugee crisis has illustrated
that the Central and Eastern European countries
have in past months become extremely resentful
towards incoming applicants for refugee status. Such
developments came as a surprise to many observers
given that those countries witnessed only twenty-five
years ago regime change from totalitarian systems
to states based on democracy and rule of law. A brief
excursion in the past and recent history of Central and
Eastern Europe countries shows that latest developments
are not at all so surprising given their historical
experience towards foreigners. This article therefore
analyses the historical reasons for the fear of the other
in the eastern part of Europe and thereafter draws lessons
and conclusions for the understanding of current
functioning of democracy rule of law and asylum
policies in selected Central and Eastern European
Countries.
39 FORMS OF CONSTITUTIONALISM
This panel will explore the evolving forms of constitutionalism.
Drawing on both quantitative and qualitative
expertise, the panelists will challenge prevailing
constitutional models and show that the majority of
democratic constitutions today are un-entrenched
documents subject to frequent revision; analyze avenues
for curbing the abuses associated with unlimited
conceptions of the constituent power; and explore how
entire constitutions can be unconstitutional.
Participants
Name of Chair
Room
Mila Versteeg
Yaniv Roznai
Richard Albert
Ozan Varol
BE2 139a
Mila Versteeg: Constitutions Un-Entrenched:
Toward an Alternative Theory of Constitutional
Design
This Article highlights a gap between a great deal
of constitutional theory and a great deal of the practice
of democratic constitution-making. Drawing on
data from democratic national and state constitutions,
we challenge the consensus among constitutional
theorists that a central purpose of constitutionalism
is the entrenchment (the fortification against future
change) of broad principles. The empirical reality is
that the majority of democratic constitutions today
are subject to frequent revision, and are therefore illequipped
to facilitate the entrenchment of their contents.
To explore the logic of these un-entrenched
documents, we identify the historical periods in which
different geographic regions moved away from highly
entrenched constitutions, and we examine the political
contexts of these transformations. We find that, in
each context, constitution-makers were attempting to
limit the discretion of constitutional interpreters and
implementers by drafting highly specific texts and by
updating them in response to continually changing
circumstances.
Concurring panels 71
Yaniv Roznai: We the Limited People? Four
Routes of Limiting Constitution-Making Powers
From a democratic theory, the absoluteness of
the people to shape and reshape their constitutional
world is what grants the constitutional order its legitimacy.
The unlimited constituent power is the manifestation
of the people’s basic freedom versus the
government, and the people are free to change their
form of government at will. From a constitutionalism
theory, this unlimited power to break any constitutional
bounds at will and at any time is dangerous and
open to abuse, as indeed history proves. In contrast
with the classical view of constituent power as an unconstrained
and unrestrained power, this paper proposes
four routes of restricting constitution-making