Panel Discusses the State of Constitutionalism in 2012

On April 27, CEU hosted a panel titled “Constitutionalism Revisited – Insights from CEU at 20” in honor of retiring CEU Trustee and Stanford Professor Emeritus Gerhard Casper. Panelists included CEU Professor of Philosophy Janos Kis, CEU Associate Professor of Legal Studies Michael Hamilton, Visiting Professor of Legal Studies Daniel Smilov, and CEU SJD candidate Gedion Timothewos Hessebon. Renata Uitz, CEU professor of legal studies, chaired the event.

Casper, a scholar in the fields of constitutional law, constitutional history, comparative law, and jurisprudence, expressed particular concern about the structure of current governments around the world. “We have seen, in the post-World War II period, an underscoring of human rights in constitutions but they need to be much more focused on the organization of the government,” Casper said. “If I could give one piece of advice: Maintain what's been achieved in the human rights area but dramatically turn your attention to the organization of government because everything that's done or not done there can undermine all progress in human rights.”

Kis talked about the danger electoral and legislative branches of government can cause to constitutions. He noted that when there is a lack of trust among adversarial parties, the constitution ends up being victimized. “If, for example, I – as a member of the majority – now restrain freedom of expression, my adversary will do the same next time and I will be in opposition and I will then be doubly burdened,” Kis said. He shared his belief that if members of opposing parties treat one another as loyal partners in upholding the constitution, they will develop mutual trust and won't destroy the document or the rights it protects. 

Hamilton spoke about the changing role of the police and highlighted incidents in which people have resisted what they see as authority overstepping constitutional boundaries. He believes that police are undergoing an identity crisis due in part to the use of other agencies, both public and private, to conduct jobs such as traffic control and property protection that used to be police responsibilities. Hamilton also addressed police action in response to today's active social protests. “In many Western democracies, we've witnessed increased surveillance, zoning of protestors in parallel with preventive logic, and escalated force,” he said. “It potentially imperils the freedom of right to assembly because the terms are often set by the police.” 

Smilov sees much progress among constitutional governments in the still-developing democracies of the region. “When discussing constitutions in Central Europe, we have to mention the word ‘success,’” he said. “An established practice in the West was transplanted here and within 20 years, we have very elaborate constitutional systems and, on top of that, supranational constitutions and extensions into new areas that could be formal or quasi-formal.” One example of a new topic of exploration in his native Bulgaria is tax regulation. Smilov said that in 2011, for example, Bulgarian finance minister Simeon Djankov suggested that taxes should be changed only with a two-thirds majority vote in the Bulgarian Parliament.

Timothewos Hessebon spoke about the relevance of Western constitutions in his native Africa. “I do not question the validity of the basic values of Western constitutions,” Timothewos Hessebon said. “They are as valid in Africa as they are anywhere else, but they need to be contextualized if they will be successful in Africa. They need to be adapted to be robust enough to withstand a hostile political environment.” He noted that there are 48 sub-Saharan countries that, despite some commonalities, are ethnically diverse and sometimes in conflict. He said it is vital to take into account ethnic rivalries, power struggles, abuse of incumbency, and the use of violence for political purposes when considering what African constitutions should include.

In thanking Casper for his 12 years of service on the CEU Board of Trustees, President and Rector John Shattuck called him an “academic beacon for CEU as it has moved through its teenage years.” Shattuck credits Casper, who served as Stanford's president for eight years, with teaching him how to run a university. Apart from his work at Stanford, Casper taught law at the University of California, Berkeley, and served for 26 years at the University of Chicago – first as dean of the law school, then as provost. He is the Peter and Helen Bing Professor Emertius in Undergraduate Education and a senior fellow at the Freeman Spogli Institute for International Studies at Stanford.