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Joint Straus/Senior Emile Noël Fellow
Academic Year 2012-2013
Stephen Gardbaum is the MacArthur Foundation Professor of International Justice and Human Rights at UCLA School of Law, and the 2011-12 Guggenheim Fellow in constitutional studies. His research focuses on comparative constitutional law, federalism, and the foundations of liberal legal and political theory. Recent work includes several articles on the comparative structure of constitutional rights and a book, The New Commonwealth Model of Constitutionalism: Theory and Practice, just published by Cambridge University Press (2013). He was the keynote speaker at the 2009 Protecting Human Rights conference in Australia, part of the major debate in that country about adopting this model through a national human rights act. His scholarship has been cited by the U.S. and Canadian Supreme Courts and widely translated. Further information on Professor Gardbaum can be found here.
Comparative Separation of Powers
My research project will address two related questions in a sub-field of comparative constitutionalism that remains relatively underexplored by legal scholars. The first is what consequences, if any, does the choice between presidential and parliamentary systems of government have for rights protection and promotion within a system of constitutional supremacy. Constitutional theory has focused on the relationship between legislatures and courts as the central one in debates about rights. By contrast, the relationship between legislatures and executives has not generally been viewed as an important variable from this perspective. And yet, even within systems of constitutional supremacy, courts are not, and should not be thought of as, the only institution protecting and promoting rights. Historically, the structure of the political system was considered at least as important and continues to be in parliamentary systems that reject judicial review. But comparing presidential systems with this latter group of parliamentary ones on the issue of rights is not to compare like with like, and risks distortion because of the underlying difference over constitutional supremacy. Accordingly, this project will compare one presidential (the United States) and one semi-presidential system (France) with two parliamentary systems of constitutional supremacy (Germany and South Africa) to explore whether there are rights implications of the different relationships between legislatures and executives.
The second question is why, until recently at least, have presidential systems been surprisingly rare among democracies – and even now among mature democracies. Although there was a massive switch to constitutional supremacy and judicial review following the Second World War, it did not for the most part also include a shift from parliamentary to presidential systems of government. Most mature democracies remain parliamentary systems and, in this respect, the United States is somewhat exceptional. What accounts for this? Why is the parliamentary version of constitutional supremacy the norm among more established democracies? Hypotheses to be explored include the anachronistic nature of U.S. presidentialism at the moment of its invention, the importance of the presence or absence of strong legislatures, and the role of different cultural histories and social meanings attaching to the various branches of government.