Global Constitutionalism 2021: Urgency and Legitimacy

Judith Resnik (eds)

Global Constitutionalism Seminar E-Book Series

This 2021 e-book, Urgency and Legitimacy, for Yale Law School’s Global Constitutionalism Seminar, is the tenth e-book in a series that began in 2012. We compiled this volume as the COVID-19 pandemic, protests, uprisings, and violent assaults were underway. This year’s topics reflect the difficult world that we inhabit, in which jurists have been faced repeatedly with arguments that urgent circumstances require rethinking constitutional norms and practices. As the materials also reflect, this era is one of many for which the word “urgency” is sadly apt and in which questions of justice and legitimacy haunt courts.

These four chapters address how courts are grappling with dire global health issues as they continue to respond to questions of law’s relationships to national security, protest, democratic deficits, and radical economic inequalities. The materials in In Medias Res: COVID-19 in the Law, which was edited by Daphne Barak-Erez (Justice of the Supreme Court of Israel) and Marta Cartabia (former President of the Constitutional Court of Italy and now the Minister of Justice), consider a few of the many legal issues raised by the hundreds of lawsuits challenging aspects of responses by governments to COVID-19. Courts have probed defenses by governments that exceptional needs license their actions. To do so, judges have assessed the quality and nature of changing scientific information and grappled with the inequalities that lace society and result in differential impacts of decisions made by governments.

In the chapter Two Decades After 9/11: The Judicial Response to Terrorism From Within and Without, co-edited by Linda Greenhouse (Senior Research Scholar in Law at Yale Law School), Ivana Jelić (Judge of the European Court of Human Rights), and Rosalie Silberman Abella (Justice of the Supreme Court of Canada), we explore how the violence of 9/11 affected debates among judges, courts, and theorists about the role of courts in regulating the work of other branches of government in response to threats to national security. Courts have weighed government arguments that threats to democratic institutions and national security justify the intrusions on liberty. Judges also have heard government arguments that courts lack the authority or the competency to assess threats, as well as that judicial evidentiary and decision-making procedures themselves increase the risk of harm.

Questions of the role of constitutional courts and the rights of the general public are also central in the chapter Encountering Protest, co-edited by Muneer Ahmad (Sol Goldman Clinical Professor of Law at Yale Law School) and Susanne Baer (Justice of the Federal Constitutional Court of Germany), which explores protest movements, past and present, to assess what courts have done in constraining, enabling, and policing protest. At times, jurists recognize the legitimacy of protests, while in other instances, judges have joined in suppressing or rendering protests invisible. And, on occasion, judges are the protestors—calling for re-evaluation of what law ought to condone or condemn.

The discussion in Extremes, Democracy, and the Rule of Law, co-edited by Daniel Markovits (Guido Calabresi Professor of Law at Yale Law School), Timothy Snyder (Richard C. Levin Professor of History at Yale University), and Manuel José Cepeda Espinosa (President Emeritus of the International Association of Constitutional Law), focuses on clashes over political and economic power, as individuals and groups aim to control the state or to escape the reach of government regulation. Once again, judges interrogate their own roles when they consider whether and how to buffer democracies through oversight and exclusion of certain kinds of political actors or the control of extreme wealth.

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