The Absolutist Judiciary

• Department of Law

The ConstPol Working group will host a presentation by Or Bassok (University of Nottingham).

Speaker

Or Bassok is Assistant Professor of Constitutional Law at the University of Nottingham. His recent work focuses on how the invention of public opinion polling led to a shift in the understanding of judicial legitimacy in the US and how this shift is responsible for the corruption of American constitutional law. He has also worked on the difficulty liberal states encounter in confronting identity issues. In one of his recent works he discovered a mysterious meeting that led Carl Schmitt to adopt national socialism. He holds a JSD and an LL.M from Yale Law School and was a Max Weber Postdoctoral fellow at the EUI.

Synopsis

The judicial authority to strike down constitutional amendments is not an advanced constitutional technology that merely upgrades judicial review. Rather, this authority is part of a jurisprudence of absolute truths that is antithetical to liberal democracy. Treating this authority as a mere technology stands at the core of the attempt to justify it based on fusing the ideas of two of Weimar’s great legal minds, Hans Kelsen and Carl Schmitt. Fusing Schmitt’s ideas with Kelsen’s enabled to transfer this authority from the president, as Schmitt envisioned, to the constitutional court that Kelsen designated as the guardian of the constitution. Yet, Kelsen objected to the idea of striking down constitutional amendments because a liberal democratic system cannot include an institution deciding on absolute truths that cannot be changed by the democratic process. Contrary to Kelsen, Schmitt believed that the constitution anchors the fundamental political core truth of the state, yet rejected the idea that an inherently political function of defending the state’s fundamental decision can be endowed to the judiciary. The attempt to juridify the authority of reviewing constitutional amendments under a legal doctrine necessarily leads to corruption either of constitutional law, as Kelsen predicted, or of the judiciary, as Schmitt thought. Normalizing the exception by creating a legal doctrine that endows the judiciary with the final say that cannot be amended by any democratic means is the end of liberal democracy, even if it is the judiciary that hands down absolute truths.

The paper will be distributed to participants upon registration.