Constitutional patriotism, migration and the post-national dilemma

This article addresses the challenges of justifying restrictions on migration given a rejection of nationalism as a defensible mode of political integration. Specifically, it focuses on constitutional patriotism, which is proposed as a means of making robust democratic practice possible in diverse contexts. Given that constitutional patriotism represents a commitment to universal principles as a source of attachment rather than the binding sentiment of nationalism, can we continue to rely on nationally defined and controlled migration practices? This article argues that, appropriately understood, constitutional patriotism implies a commitment to much freer movement of individuals across political boundaries than theorists have previously acknowledged. Applying such an approach, however, provokes some challenges to the sustainability of shared rule informed by principles rather than identity. This seeming paradox may mean that constitutional patriotism is more difficult to implement, and highlights practical challenges surrounding the liberalisation of border controls that are pertinent to theorists concerned with post-national citizenship more broadly conceived.

Patriotism or Integrity?:Constitutional Community in Divided Societies

Some commentators worry that a plurinational constitutional order can only ever be an inherently unstable modus vivendi. They fear that the accommodation of sub-state nationalism will tend to undermine the viability of constitutional democracies. This article enlists Ronald Dworkin’s theory of ‘law as integrity’ to show how these concerns might be assuaged. My central claim is that the expressive value of integrity can drive a divided society in the direction of an eventual community of principle, even in the absence of a common political identity. I argue that this model of political community is a more plausible prescription for divided societies than the theory that competing nationalisms might be superseded by constitutional patriotism. I go on to explain, however, that integrity has a better chance of realizing this potential if the generally judge-centric focus of Dworkin’s theory is expanded to make greater room for non-judicial interpretative responsibility. Occasional references are made to the example of Northern Ireland to illustrate my points.

Cosmopolitanism, the nation-state and imaginative realism

Contemporary writing on cosmopolitanism has asserted the need for a new sociological toolkit to deal with an emergent post-national social order. At the heart of this agenda is a misunderstanding about the role of the nation-state, which has led to some rather unhelpful theorizations. The state is assumed to be a dead hand in the development of post-national sentiments or an increasingly irrelevant social structure. We argue that the superseding of the nation-state is not necessary for the development of cosmopolitan sentiments of solidarity. In addition to classical sociology, it is work surrounding the concepts of cosmopolitan democracy and constitutional patriotism and the public sphere that can assist us in theorizing cosmopolitanism. What distinguishes this tradition is the utilization of social science concepts such as democracy, state, public sphere and law in an attempt to ground the idea of cosmopolitanism within the context of existing social structures.

Legitimacy and rights in the EU: questions of identity

Rights as well as democracy play a crucial role in the legitimacy of the EU and constitutional patriotism has been influential in attempting to link them together. The article seeks to engage in a critique of constitutional patriotism on two fronts. First, it distinguishes between the various types of right that exist within EU law-Community, citizenship and fundamental-and then analyses the place of these rights within various political models of the EU ranging from nationalism to republicanism. It argues that constitutional patriotism does not enjoy a monopoly on rights discourse in the EU: most models of the EU see a place for rights; it is just that the type of right supported varies. Secondly, advocates of constitutional patriotism argue that EU rights generate European identity. The article questions the extent to which this is the case, arguing that identity potential varies considerably according to the type of EU right concerned.

The unpatriotism of the economic constitution? Rights to free movement and their impact on national and European identity

Abstract: Instead of the political reading of the EU Constitution adopted by advocates of constitutional patriotism, this article examines the European economic constitution. The four single market freedoms can be used by the Court of Justice to strike down Member State laws which represent deeply held aspects of national cultural identity. The article examines whether the court does in fact act in this way and proceeds to argue that the issue of identity protection does not stop with the court. In those policy areas where the court is more interventionist, and its case-law is perceived as an identity threat, one is likely to find binding Treaty-based derogations. Where, in contrast, the effect of the court's case-law poses less of a threat, one is more likely to see non-binding declarations. The article examines a number of policy areas in which specific cultural derogations and declarations are to be found, including abortion, property acquisition, football and alcohol control.

Por uma Teoria Crítica das Relações Internacionais: as contribuições de Jürgen Habermas

Fundação de Amparo à Pesquisa do Estado de São Paulo (FAPESP)

Percursos identitários: patriotismo constitucional eu pós-convencional e identidade negra

Pós-graduação em Educação - FFC

Diritti sociali e crisi del costituzionalismo europeo [Social rights and the crisis of European constitutionalism]. WP C.S.D.L.E. “Massimo D’Antona”.INT – 95/2012

In the face of what looks like a real impasse of the the line of European constitutionalism, partly due to an orientation of the Court of Justice which tends to favor the protection of economic freedoms over the protection of social rights, two opposing trends occurr. The first amounts to a new "constitutional patriotism"; the second entrusts the protection of fundamental social rights no longer to a single Chart or to a single court but to a multi-level system of protection. A dialogue between the European courts that truly valorizes fundamental rights, however, might be hindered by what someone has seen as a resurgence of the dualist theories, evident in an ECJ’s decision as Kadi.

Migration and identity in a post-national world

What does post-national identity mean for the control of migration? Katherine Tonkiss engages with the post-national theory of 'constitutional patriotism' and argues in favour of both post-national identity and relaxed migration controls. She explores the implications of such liberalised migration for the dynamics of identity and belonging in local communities, drawing on qualitative research on Eastern European migration to the UK. Illustrated with rich case study material, this book offers a novel contribution to the post-nationalism literature.

Voter behaviour and constitutional change in Australia since 1967

Australian Constitutional referendums have been part of the Australian political system since federation. Up to the year 1999 (the time of the last referendum in Australia), constitutional change in Australia does not have a good history of acceptance. Since 1901, there have been 44 proposed constitutional changes with eight gaining the required acceptance according to section 128 of the Australian Constitution. In the modern era since 1967, there have been 20 proposals over seven referendum votes for a total of four changes. Over this same period, there have been 13 federal general elections which have realised change in government just five times. This research examines the electoral behaviour of Australian voters from 1967 to 1999 for each referendum. Party identification has long been a key indicator in general election voting. This research considers whether the dominant theory of voter behaviour in general elections (the Michigan Model) provides a plausible explanation for voting in Australian referendums. In order to explain electoral behaviour in each referendum, this research has utilised available data from the Australian Electoral Commission, the 1996 Australian Bureau of Statistics Census data, and the 1999 Australian Constitutional Referendum Study. This data has provided the necessary variables required to measure the impact of the Michigan Model of voter behaviour. Measurements have been conducted using bivariate and multivariate analyses. Each referendum provides an overview of the events at the time of the referendum as well as the =yes‘ and =no‘ cases at the time each referendum was initiated. Results from this research provide support for the Michigan Model of voter behaviour in Australian referendum voting. This research concludes that party identification, as a key variable of the Michigan Model, shows that voters continue to take their cues for voting from the political party they identify with in Australian referendums. However, the outcome of Australian referendums clearly shows that partisanship is only one of a number of contributory factors in constitutional referendums.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Constitutional legitimacy : an international ill and gap in the literature?

The central argument of this work is that “democratic constitutional legitimacy”[2] probably does not currently exist in the politics of any country internationally. This inherent problem in constitutionalism is an endemic governance problem most citizenries should be dealing with, only that we are not in a large extent doing so and haven’t been historically. This position was ascertained using a form of Beck and Grande’s (2010) cosmopolitan methodology in my doctoral thesis (which we shall return to). It is argued that every constitution is in need of considerable rethinking so as to bring its statutes in line with the interests of the plurality of individuals it oversees. Finally, this work attempts to show that research in this area of democratic constitutional legitimacy is lacking in the literature as only a few scholars presently engage the issue (namely Simone Chambers).