Category Archives: constitution

November 4, 2011 · 17:08

A constitutional amendment already?

It seems Burma’s new politicians are in a mood for tinkering with the 2008 Constitution. Members of the ruling Union Solidarity and Development Party have proposed a constitutional amendment that would allow government MPs to serve concurrently in the Hluttaw and in the executive. According to Irrawaddy, the current push is being driven by USDP hardliners, including ex Brig-Gen Thein Zaw, ex Col Aung Thaung, ex Maj-Gen Khin Aung Myint, currently the speaker of the Upper House and of the combined Union Parliament, and Zaw Myint Pe.

I’m actually a bit surprised that this is the first constitutional amendment proposal that seems to have serious backing. After all, the prohibition on MPs serving in government is pretty clear and unambiguous in the constitution. If key stakeholders had not wanted it, why didn’t they lobby to change it before the elections? One possibility is that this is a tactical move geared at reducing the number of seats contested in by-elections later this year. As it currently stands, there are 70 constituencies now open because of appointments to the executive branch. Some observers view these elections as an opportunity for Aung San Suu Kyi and the National League for Democracy to join the government. As such, the amendment might simply be an attempt by hardliners to forestall that possibility. Still, it’s remarkable that all of this is playing out in the language of legislative and constitutional change!

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Filed under Burma, constitution, Myanmar

August 30, 2011 · 18:40

Wanting Islamic Law

Greg Lopez at the New Mandala blog points to a startling poll showing that over 70% (71.6% to be precise) of Malaysians would want to replace the Federal Constitution with the Quran. Lopez puts this in the context of an increasingly Islamicized Malaysia, although his conclusions are admittedly alarmist. It actually isn’t fairly unusually for Muslims to hold Islamic law in higher regard than their country’s constitution. Unlike secular law, Islamic law is religious law and inherently viewed as morally superior. However, this doesn’t necessarily mean the average Muslim approves each tenet of Islamic law, or even understand Shariah. In fact, if we look at the rest of the poll, we find evidence for this proposition. Overwhelming majorities of Malaysians support Islamic law, but very few have actually read the Quran, and even fewer claim to understand its verses. In short, we shouldn’t read too much into the 70% statistic as it might simply indicate that respondents want a more “moral” law, not the specific provisions of Shariah.

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Filed under constitution, Islam, Malaysia, religion

June 15, 2011 · 02:44

Burma Constitution articles

Wow, I almost forgot to post these on the blog. First, my article for the Australian Journal of Asian Law on Burma’s new constitution was finally published. Second, I wrote a brief article summarizing Burma’s constitutional debates for Tom Ginsburg’s Comparative Constitutions blog. In both, I argue that the new Constitutional Tribunal will likely help the government centralize control over local government bodies and help manage and update constitutional interpretations. I’m looking forward to seeing whether my predictions come true over the next few years.

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Filed under Burma, constitution, Myanmar

January 31, 2011 · 03:31

Book Review: Global Constitutions

Tushnet and Amar’s Global Perspectives on Constitutional Law is a slender volume, essentially a miniature comparative constitutional law textbook, almost a supplement to Jackson & Tushnet’s Documentary Supplement to Comparative Constitutional Law 2005 (University Casebooks). This book covers some topics that earlier textbook doesn’t such as campaign finance. Each chapter excerpts cases on the topic from various jurisdictions. Unfortunately, as is the case with many comparative law texts, each subjects covers only a few jurisdictions, so it’s difficult to know whether they’re really representative. Some of the notes are pretty useful and can serve as a guide to further sources.

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December 3, 2010 · 14:38

Book Review: The Four Justices Who Built Modern U.S. Constitutionalism

It seems as if there’s a veritable slew of good books about Supreme Court justices this year. The latest, Noah Feldman’s Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, focuses on four of Franklin Roosevelt’s appointees: Felix Frankfurter, Hugo Black, Robert Jackson, and William O. Douglas. 

Each of these justices is fascinating and could merit an individual biography (and there are biographies on each). By writing a joint biography, however, Feldman is really able to compare and contrast these men and their jurisprudence. Frankfurter was the activist law professor who was reluctant to exercise judicial review. Hugo Black, a former KKK member, became a noted civil libertarian and read the constitution literally. Robert Jackson, a small-town lawyer and later Nuremberg prosecutor, usually judged cases with an eye towards pragmatic policy solutions. William O. Douglas pined for political office but settled for preaching liberal values. Together, these men developed or promoted the modern constitutional doctrines of judicial restraint, originalism, pragmatism, and liberalism. 

Outside the legal realm, these four justices often fought and bickered to a degree startling for four liberals appointed by the same president. Robert Jackson, who at law schools is portrayed as a reverential figure, got into a petty argument with Black over whether the latter should recuse himself in a case involving a former lawyer partner. Jackson even took his dispute public, sending cables from Nuremberg to impugn his colleague. Frankfurter viewed Black as an intellectual lightweight and relied on a network of mentees to conduct historical research against Black’s legal philosophy. Douglas comes off as boorish, especially to his law clerks. However, there are some heartening moments too, such as when Frankfurter defends Jackson against the latter’s former ungrateful law clerk, William Rehnquist. 

I haven’t been a fan of Feldman’s past work, particularly the lightweight The Fall and Rise of the Islamic State (Council on Foreign Relations Book). However, I think he gets Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices just about right. For law students like me, I can recognize some of the cases and legal debates to which the book refers. It certainly furthered my understanding of these cases. Perhaps best of all, having a passing familiarity with these justices, I was still genuinely shocked by some of the book’s anecdotes (particularly the petty fueds). However, it’s generally accessible enough for any reader interested in American history to understand and enjoy. 

My only “criticism” of Scorpions is that it’s not long enough to do the subject full justice. I know, that’s a common faux criticism. The main narrative essentially ends with Jackson’s death in 1954, after Brown v. Board. However, Feldman alludes to tantalizing hints of how the other justices behaved afterwards. For example, Black and Douglas, despite being ideological allies during the 1950s, stopped speaking to each other in the late 1960s. Yet, Feldman doesn’t really explain why. I felt like the book could really have benefitted from just a few more pages. 

Overall, I’d highly recommend this for readers interested in the Supreme Court in particular, or just U.S. history generally. I’d also recommend Jeff Shesol’s Supreme Power: Franklin Roosevelt vs. the Supreme Court, which covers FDR’s court-packing scheme and acts as a nice prequel to Scorpions.

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Filed under constitution, United States