Who makes constitutional claims? The paper argues that on both sides of the Atlantic a multiplicity of constitutional actors outside the courts participate in the elaboration of constitutional principles. I map out these constitutional actors by using as a case study the legal recognition of same-sex marriage in the United States, Spain, the United Kingdom, and Ireland. In all four country cases, there are common functional demands for democratic involvement in shaping constitutional meaning. Even though these demands may take various institutional and procedural forms owing to diverse political, institutional, and cultural contexts, I argue that the same overarching hydraulics effect is at play across jurisdictions. When social movements are shut out of one forum, they channel their constitutional claims through different institutional avenues.
The four systems represent distinctive models of formal recognition of same-sex marriage, with different actors taking the lead and having the final say on this contested issue. However, I explain that in all four cases we can detect the voices of multiple actors, including notably the people themselves, in a process of legal contestation around and interpretation of fundamental constitutional principles. These voices can take different forms, and the paper proposes institutional, historical, political, and cultural factors that may account for this. Thus, the paper tells a story of legal development arising from inclusive interpretive communities in the context of a democratic constitutional theory. This facilitates dynamic constitutional interpretation that reflects evolving political and social demands instead of top-down delivery of constitutional meaning.
Athanasios (Akis) Psygkas is lecturer in law at the University of Bristol in the UK and currently a visiting scholar at the University of Toronto. His research interests include comparative public law, regulation, and global governance. His latest book, entitled “From the ‘Democratic Deficit’ to a ‘Democratic Surplus’: Constructing Administrative Democracy in Europe” (Oxford University Press, 2017), examines the impact of EU law on the adoption of participatory regulatory processes in the member states.
Akis received J.S.D. and LL.M. degrees from Yale Law School, where he was a Fulbright scholar, and an LL.B. and LL.M. in Public Law and Political Science from the Aristotle University of Thessaloniki (Greece). He has held fellowships at the European University Institute in Florence, the Institut d’Etudes Politiques (Sciences Po) in Paris, and Yale. He has been managing the Comparative Administrative Law Blog over the past seven years.
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