Daniel Halberstam (University of Michigan Law School) has posted Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States (RULING THE WORLD? CONSTITUTIONALISM, INTERNATIONAL LAW AND GLOBAL GOVERNMENT, Jeff Dunoff, Joel Trachtman, eds., Cambridge University Press, Forthcoming, U of Michigan Public Law Working Paper No. 111) on SSRN. Here is the abstract:
In the debates about whether to take constitutionalism beyond the state, the European Union invariably looms large. One element, in particular, that invites scholars to grapple with the analogy between the European Union and global governance is the idea of legal pluralism. Just as the European legal order is based on competing claims of ultimate legal authority among the European Union and its Member States, so, too, the global legal order, to the extent we can speak of one, lacks a singular, uncontested hierarchy among its various parts. Scholars have accordingly begun to consider pluralism within the European Union as a model from which to glean more general principles that may be applicable to pluralism and constitutionalism elsewhere. If we can find constitutionalism within the pluralist system of the European Union, so the argument goes, perhaps we can find constitutionalism within the international legal system as well.
This paper takes a fresh look at constitutionalism and pluralism by bringing heterarchy home. In so doing, it explores a comparison that has been uniformly overlooked in the scholarly literature. This chapter examines the similarities between the pluralism that lies at the core of European constitutionalism and aspects of pluralism in U.S. constitutional practice. With regard to these two systems, the chapter makes three claims. First, in both systems important questions of final legal authority remain essentially unsettled. Second, in both systems, this absence of hierarchy of legal authority does not lead to chaos, but constitutes a system of order. Third, the management of constitutional conflict and the resulting accommodation turn on what I claim are the three primary values of constitutionalism: voice, expertise, and rights.
Reaching beyond these two systems, the comparative inquiry pursued here helps answer what may be the most pressing question for those who seek to understand global governance in the language of constitutionalism. The comparison reveals that constitutionalism does not depend on traditional hierarchy among systems or interpretive institutions. Instead, constitutionalism can be realized within a system of heterarchy. Constitutionalism stands for a project of governance in which actors endeavor to realize the primary values of voice, expertise, and rights. And it is these three values that the idea of constitutionalism, if taken seriously, aims to vindicate at the level of global governance as well.
And from the text:
The unsettled nature of the relative authority of the President, the Congress, and the Supreme Court in matters of constitutional interpretation, that is, the centrality of both conflict and accommodation within our system, is as old as judicial review itself. Only six days after Marbury v. Madison32 proclaimed the great principle that the Supreme Court would review the constitutionality of legislative and executive action, Stuart v. Laird33 upheld a constitutionally questionable attack on the Court by the political branches. Stuart and Marbury were part of the same pitched battle between the Federalists, who had lost control over the Presidency and Congress in the election of 1800, and the new administration of Thomas Jefferson.34 Although Marbury is usually celebrated and Stuart largely forgotten, the immediate practical importance of Stuart was, in many ways, greater than that of its famous twin. Marbury involved the idiosyncratic case of a single signed, sealed, but undelivered judicial commission. Stuart, by contrast, involved the imposition on the individual justices of an onerous duty to “ride circuit” and decide cases in courts of appeal, which left the justices less time to tend to the Supreme Court’s own work. But lacking the votes to deal a second blow to the Jeffersonians after Marbury, the great Chief Justice simply recused himself in Stuart and allowed Associate Justice William Paterson to pen a perfunctory opinion upholding the objectionable law.35
Marbury and Stuart thus inaugurated a pragmatic American tradition of constitutional accommodation lasting to this very day.
And one more passage:
Constitutional heterarchy is a system of spontaneous, decentralized ordering among the various actors within the system. But it is more than that. Constitutional heterarchy is not merely conflict and accommodation based on raw power differentials or random fortuity of positions of relative advantage. Instead, constitutional heterarchy reflects the idea that the coordination among the various actors is based in constitutional considerations, that is, in the values of constitutionalism itself. Because conflict and accommodation are ordered in this way, constitutional heterarchy helps crystallize what these values are. Actors will base their respective claims of superior authority on their relative ability to vindicate the values of constitutionalism. And even when actors make what appears to be a naked bid for power, they will phrase their claims in terms of constitutional principle.41 Put another way, these normative and interpretive conflicts are carried out in what Neil Walker has called a “constitutional register.”42
Fascinating and recommended.
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