Editorial: COVID-19 and the Future of Constitutionalism

Juliano Zaiden Benvindo, Oran Doyle & Chiara Graziani

University of Brasilia, Trinity College & University of Milan-Bicocca

It has been 18 months since COVID-19 first swept around the world. Since then, we have seen different waves of the virus affect different regions more or less severely at different times. There have been unprecedented restrictions on individual rights and freedoms, and unprecedented state intervention to protect health and preserve economic and social life. While the vaccination drive has seen a return to something like normality – or perhaps better said a new normality – in many countries, it has accentuated an already glaring divide between the global North and the global South.

The prognosis for the next 18 months is as uncertain as for the last 18 months. Nevertheless, the implications for constitutionalism have begun to crystallise.  In this Blog Symposium, we explore how the pandemic has both forced us to reconsider existing issues in constitutionalism and drawn attention to new ones.

The pandemic has been a crucible for testing traditional legal doctrines of emergency. In lay terms, every country has mounted an emergency response. But there has been a wide divergence of constitutional form. In her post, Arianna Vedaschi explores some of the underlying factors: the hybrid emergency with both technical and political elements, the blurred dividing line between rights restriction and rights suspension, the co-operation (or lack thereof) between different constitutional actors in multi-level governance. Vedaschi argues cogently that international and national actors – and we suggest scholars also – will need to rethink our frameworks for emergency action.

In our traditional understanding of emergencies, executives have been to the fore. For liberal constitutionalists, this has often appeared as a threat, a prelude to an unravelling of constitutional standards. Yet Conor Casey in his post draws attention to the critical importance of executive strength in meeting the challenges of the pandemic. Nor can executive strength, he argues, be conjured into existence at the time of an emergency. It must be developed in more ordinary times, he suggests, challenging the preconceptions of liberal constitutionalists who fear executive power.

Governments around the world have deployed a mixture of law and guidance in coordinating their communities’ response to the pandemic. This has caused scholars to explore the role that guidance can and should play as a mode of constitutional governance. In their post, Iain Cameron and Anna Jonsson Cornell identify several problems with the reliance on guidance: among them, the principles of legality and legal certainty, the existence of effective remedies when dealing with recommendations instead of binding legal norms, alongside the tendency for notional guidance to morph into effectively legally binding standards. This marks the beginning of an important new discussion in comparative constitutionalism. 

One of the issues brought into sharp focus by the pandemic has been multi-level governance, both internally within states and between states and supranational institutions. In his post, Eugenio Velasco Ibarra charts the responses in several federal countries. The challenges of co-ordination remain the same irrespective of the precise constitutional form that multi-level governance takes. Velasco Ibarra identifies informal norms of intergovernmental co-operation as an important topic for further analysis. Pedro Villarreal explores the question of multi-level governance in the supranational context. Here many similar issues have played out as within states – challenges of coordination, alienation and the extension of competences.

The ability of legislatures to operate during the pandemic has brought into sharp focus many concerns about democratic accountability and executive dominance. In his post, Ittai Bar-Siman-Tov draws together 18 months of empirical research to show how the responses of legislatures have had much more to do with their own internal capacities – e.g. the ability to hold virtual meetings – than the severity of the disease.

Government responses to the pandemic have seen the widespread curtailment of human rights – both through restrictions on physical movement and online tracking. In his post, Eric Ip explores how the proportionality test has functioned as a means of assessing rights restrictions in this new context. Before the pandemic, constitutional scholars might – we suspect – have given much consideration to the connections between public health in constitutionalism. Yet, the past 18 months have taught us the importance of both the constitutional regulation of public health measures and how threats to public health drive constitutional developments. In her post, Débora Diniz reviews these trends.

This symposium marks the beginning of a new project on the implications of the COVID-19 pandemic for constitutionalism. We are grateful to all the authors for stimulating debate. We welcome new members joining the group to participate in future activities, which can be done by emailing us at this address. And we will be holding a webinar for group members on Friday 15 October at 1pm (Italy time) to plan how to take these projects forward.

Juliano Zaiden Benvindo is Professor of Constitutional Law at the University of Brasilia.

Oran Doyle is Professor in Law at Trinity College Dublin.

Chiara Graziani is Research Fellow at the University of Milan-Bicocca and Academic Fellow at Bocconi University, Milan. 

Suggested citation: Juliano Zaiden Benvindo, Oran Doyle, Chiara Graziani, ‘Editorial: COVID-19 and the Future of Constitutionalism’ IACL-AIDC Blog (7 September 2021) https://blog-iacl-aidc.org/covid19-future-constitutionalism/2021/9/7/editorial-covid-19-and-the-future-of-constitutionalism.