Please join us on Thursday March 23, 2023 at 12:30pm for an Asper Centre Constitutional Roundtable with Professor Eleonora Bottini on a forthcoming paper titled “Modernizing Constitutions: A comparative analysis of justifications for constitutional reforms.”
The David Asper Centre for Constitutional Rights’ Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice. The Constitutional Roundtable series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian constitutional law.
All are welcome. No Registration or RSVP required. Light lunch will be provided.
Venue: John Willis Classroom FL219, Flavelle House, Faculty of Law, University of Toronto
Abstract: The idea, dear to Thomas Jefferson, that a people cannot be subjected by the laws of the previous generations is in direct contrast with the intention of the constituent power to make the constitution– as opposed to ordinary legislation – last for more than one generation. One way to conciliate this paradox of constitutional theory is the possibility of amending the text of rigid constitutions if and when they become “outdated”. Therefore, a very effective argument to legitimize constitutional amendments has been that they serve the modernization of the constitution, making it compatible with current times without having to substitute it entirely, which could be politically impossible or undesirable. This paper critically examines the uses of the constitutional modernization argument (CMA) from a comparative perspective, by studying examples of constitutional reforms from 2000 to 2022 in various countries. The paper’s contribution is firstly to unpack the structure and assumptions of CMA and to divide it into sub-arguments in order to provide a better understanding of those types of justifications. The paper concludes on a critique of CMA as an unjustified objectivization of constitutional reforms which can mask the changed political preferences that amendments convey.
Eleonora Bottini is Full Professor of Public Law at the University of Caen-Normandy (France) and is currently the Martin-Flynn Global Law Professor at University of Connecticut School of Law. She served previously as associate professor at Sorbonne Law School in Paris and was the Alliance Visiting Professor at Columbia University. She specializes in comparative constitutional law, French constitutional law and legal theory. She has published several articles and book chapters in French, Italian and English and she is the author of a book based on her PhD thesis, “Constitutional sanction: study of a doctrinal argument” (Dalloz, 2016, in French), on the theoretical origins of judicial review.