Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order

European Law Journal

Volumn 16, Issue 5, 2010, Pages 511-550

  Sabel, Charles F ^a   Gerstenberg, Oliver ^b  

^a Columbia Law School ^*  (United States)

^b UNIVERSITY OF LEEDS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77956024866     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2009.00521.x     Document Type: Article

References (106)

1. Eugen Schmidberger, Internationale Transporte und Planzüge v Austria [2003] ECR I-5659.
2. Omega Spielhallen - und Automatenaufstellungs - GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609.
3. Cases C-402/05P and C-415/05P, Kadi and Al Barakaat, judgment (Grand Chamber) of 3 September 2008.
4. BVerfGE 37, 271 (Solange I); English translation at [1974] 2 CMLR 540; 73, 339 (Solange II); English translation at [1987] 3 CMLR 225.
5. For a response to the sceptics, cf B.-O. Bryde, 'International Democratic Constitutionalism', in R. St. J. MacDonald and D.M. Johnston (eds), Towards World Constitutionalism (Martinus Nijihoff, 2005), at 103-125 and L.R. Helfer and A.-M. Slaughter, 'Why States Create International Tribunals: A Response to Professors Posner and Yoo', (2005) 93 California Law Review 899
6. see also M. Kumm, 'The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State', in F.L. Dunoff and J.P. Trachtman (eds), Ruling thre World? Constitutionalism, International Law, and Global Governance (Cambridge University Press, 2009), at 258-324.
7. See A. Moravcsik, 'The Origins of International Human Rights Regimes: Democratic Delegation in Postwar Europe', International Organisation, (2000) 54 217.
8. Complementing domestic responses, which include, in the German constitution, the strong emphasis on human dignity and a case-law emphasising the 'horizontal effect' of fundamental rights; cf BVerfG 7, (Lüth), 198 .
9. For theoretical foundations, see F. Böhm, 'Privatrechtsgesellschaft und Marktwirtschaft', (1966) 17 Ordo, Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft 75; W. Hallstein, Europe in the Making (Allen & Unwin, 1972).
10. For a representative view, cf W. Hallstein, 'Europapolitik durch Rechtsprechung', in H. Sauermann and E.J. Mestmäcker (eds), Wirtschaftsordnung und Staatsverfassung, Festschrift für Franz Böhm (JCB Mohr, 1975), 205, at 211ff and 213.
11. ECJ Case 29/69, Stauder v City of Ulm, [1969] ECR 419.
12. ECJ Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fuer Getreide und Futtermittel [1970] ECR 1125, at 1131. Referring to this case, Advocate General Leger in his Opinion in C-87/01, Commission v CEMR, 17 September 2002, at para 64 explained: 'As we know, to establish the existence of a general principle of Community law, the Court carries out a comparative examination of national legal systems. In this connection, it is unanimously agreed that the Court does not seek to determine the arithmetical average of national laws or to fall into line with the lowest common denominator. On the contrary, the Court takes a critical approach and gives the answer which is most appropriate in relation to the structure and aims of the Community' (references omitted).
13. ECJ Case C-540/03, European Parliament v Council of the European Union, 27 June 2006, para 35.
14. See from very different perspectives, respectively, F.G. Jacobs, The Sovereignty of Law. The European Way (Cambridge University Press, 2007); F.G. Jacobs, 'The State of International Economic Law: Re-Thinking Sovereignty in Europe', (2008) 11 Journal of International Economic Law 5; P. Kirchhoff, 'The Legal Structure of the European Union as a Union of States', in A. von Bogdandy and J. Bast (eds), Principles of European Constitutional Law (Hart, 2006), at 765ff; M. Herdegen, 'General Principles of EU Law - the Methodological Challenge', in U. Bernitz, J. Nergelius and C. Gardner (eds), General Principles of EC Law in a Process of Development (Kluwer, 2008).
15. Schmidberger, op cit n 1 supra, para 81.
16. Omega Spielhallen - und Automatenaufstellungs - GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609.
17. On the terminology of 'reverse application' of Solange, cf D. Halberstam, 'Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States', in Dunoff and Trachtman, op cit n 5 supra.
18. For this characterisation, cf A. Tizzano, in A. Arnull, P. Eeckhout and T. Tridimas (eds), Continuity and Change, Essays in Honour of Sir Francis Jacobs (Oxford University Press, 2008), 125, at 137.
19. Cf op cit n 4 supra.
20. Notice that the official translation of the last sentence runs: 'Article 24 of the Constitution does not without reservation allow it to be subjected to qualifications'. But the original German text, speaking of the 'Grundrechtsteil des Grundgesetzes', runs: 'Ihn zu relativieren, gestattet Article 24 GG nicht vorbehaltlos'.
21. BVerfG 52, 187; English translation at [1980] 2 CMLR 531.
22. Solange II, op cit n 4 supra, para 35.
23. Stauder, op cit n 10 supra; Handelsgesellschaft, op cit n 11 supra; Case 4/73 Nold v Commission [1974] ECR 491.
24. Solange II, op cit n 4 supra, para 48.
25. ECJ Opinion 2/94 on the Accession of the Community to the ECHR, [1996] ECR I-1759, para 33.
26. Article 6(2) TEU provides: 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.
27. ECtHR Application No 45036/98, Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v Ireland (2006) 42 EHHRR 1.
28. A similar reconciliation, reflecting the Solange II formula, has been provided by the Czech constitutional court in its judgment of the Czech Constitutional Court Pl. ÚS 19/08, of 26 November 2008, English version available at http://angl.concourt.cz/angl_verze/doc/pl-19-08.php. The transfer of domestic powers to an international organisation must not, the court insisted, 'go so far as to violate the very essence of the Czech republic as a democratic state governed by the rule of law, founded on respect for the rights and freedoms of human beings and of citizens, and to establish a change of the essential requirements of a democratic state' (headnote 1).
29. Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, ETS No 155 (1994), cf the text on the website available at http://conventions.coe.int/Treaty/en/Treaties/Html/155.htm.
30. ECtHR Application No 53924/00, Vo v France, judgment (Grand Chamber) of 8 July 2004, para 82.
31. 'The Contracting States have a certain margin of appreciation . . . [which] goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court': ECtHR Application No 38224/03, Sanoma Uitgevers BV v the Netherlands, 31 March 2009, para 59.
32. ECtHR Application No 44362/04, Dickson v United Kingdom, judgment (Grand Chamber) of 4 December 2007, para 78.
33. ECtHR Application no. 36022/97, Hatton and Others v UK, judgment (Grand Chamber) of 8 July 2003.
34. Dickson, op cit n 34 supra.
35. ECtHR Application No 28957/95, Christine Goodwin v United Kingdom, judgment of 11 July 2002.
36. ECtHR Application No 22028/04, Zaunegger v Germany, judgment of 3 December 2009.
37. See R. Keohane, S. Macedo and A. Moravcsik, 'Democracy-Enhancing Multilateralism', (2009) 63 International Organisation 1.
38. ECtHR Application No. 42326/98, Odièvre v France, judgment of 13 February 2003.
39. Vo, op cit n 32 supra.
40. Dissenting Opinion of Judge Ress, para 1 and para 8.
41. BVG 2 BvR 1481/04 (Görgülü), para 45.
42. But see L.R. Helfer, 'Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime', (2008) 19 European Journal of International Law 125, who observes that the court is tightening up in this respect, moving in more on the autonomy of Member States with regard to issues of compliance and remedies. For a similar observation, cf M. Tushnet, Weak Courts, Strong Rights (Princeton University Press, 2008), arguing that the court's technique has been to narrow the margin of appreciation over time (at 71). Yet, to the extent that those observations are accurate, the importance of the question of the interrelation between the ECtHR and national constitutional courts addressed in this section increases.
43. Görgülü, op cit n 49 supra, para 31, with references to BVerfGE 74, 358 (370); 82, 106 (120).
44. Görgülü, op cit n 49 supra, Headnote 1 and para 50.
45. Algemene Transport-en Expeditie Onderneming van Gend en Loos NV v Nederlandse Belastingadministratie [1963] ECR 1.
46. Joined Cases C-402/05P and C-415/05P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, 3 September 2008, para 282.
47. Case 294/83, Les Verts v Parliament, 23 April 1986.
48. P. Eeckhout, 'EU External Relations Law', in Arnull et al, op cit n 19 supra, at 329.
49. op cit n 70 supra, para 210.
50. J. Weiler, 'Editorial', (2009) 19(5) European Journal of International Law 1 (on Kadi); G. de Burca, The European Court of Justice and the International Legal Order after Kadi, Jean Monnet Working Paper No 01/09. But even these critics of the reasoning in Kadi agree with the outcome, and for this reason we regard this case as less contested or controversial that those treated in part III.
51. P. Eeckhout, 'Kadi and Al Barakaat: Luxembourg is not Texas - or Washington', EJIL Analysis (25 February 2009).
52. ibid. For a related discussion, cf P. Eeckhout, 'A Panorama of Two Decades of EU External Relations Law', in Arnull et al, op cit n 19 supra, at 323-337.
53. ECJ Case C-310/04, Commission v SLG Carbon [2006] ECR I-5915, para 43.
54. ECJ Case C-465/07, Elgafaji and another v Staatssecretaris van Justitie, judgment (Grand Chamber) of 17 February 2009, para 28.
55. The ECJ refers to, but does not discuss, the ECtHR's decision in NA v The United Kingdom from 17 July 2008, in particular, its para 115-117.
56. op cit n 85 supra, para 28.
57. To a similar effect, see the Opinion by Advocate General Maduro, at paras 19 and 20.
58. By implication advocates of this line of argument hold that certain - for example 'social' - rights are to be asserted unconditionally, without regard to their relation and possible conflict with other rights. The view is perhaps best understood as an expression of the neo-corporatist idea that the 'social' domain - including collective bargaining and social welfare - should make its own, separate law, for instance through collective bargaining or 'social dialogue'.
59. R. Münch, 'Constructing a European Society by Jurisdiction', (2008) 14(5) European Law Journal 519.
60. ECJ, Case C-438/05, Viking, 11 December 2007.
61. ECJ, Case C-341/05, Laval, 18 December 2007.
62. ECJ Case C-346/06, Rüffert, 3 April 2008.
63. ECJ Case C-319/06, Commission of the European Communities v Grand Duchy of Luxembourg, 19 June 2008.
64. Viking, op cit n 92 supra, paras 44 and 47.
65. Cf C. Barnard, Employment Rights, Free Movement Under the EC Treaty and the Services Directive, Europa Institute Mitchell Working Paper Series 5/2008, at 14; see also C. Barnard, 'Social Dumping or Dumping Socialism? Case Note on Laval and Rüffert', (2008) 67 Cambridge Law Journal 262.
66. Cf Barnard, ibid; S. Deakin, Regulatory Competition after Laval, available at http://www.cbr.cam.ac.uk/pdf/WP364.pdf; F. Scharpf, The Only Solution is to Refuse to Comply with the ECJ Rulings, available at http://www.boeckler.de/164_92433.html; see also C. Joerges and F. Rödl, 'Informal Politics, Formalised Law and the "Social Deficit" of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval', (2009) 15(1) European Law Journal 1.; R. Rebhahn, Grundrechte und Grundfreiheiten im Kollektiven Arbeitsrecht vor dem Hintergrund der neuen EuGH Rechtsprechung, available at http://www.etui.org/en/Headline-issues/Viking-Laval-Rueffert-Luxembourg/2-Articles-in-academic-literature-on-the-judgements/(offset)/45.
67. On socio-economic rights within the domestic law context, see Tushnet, op cit n 50 supra (exploring the idea of how weaker forms of judicial review may actually allow for stronger social welfare rights).
68. Cf Recital (5) of the Preamble.
69. P. Davies, 'Case C-346/06, Rüffert v Land Niedersachsen [2008] IRLR 467 (ECJ)', (2008) 37(3) Industrial Law Journal 293.
70. Rüffert, op cit n 94 supra, rec 10.
71. ibid, rec 33. A similar dispute, concerning, inter alia, a clause requiring an automatic adjustment of rates of remuneration to the costs of living under the law of the host state arose in Luxembourg, op cit n 95 supra. The Grand Duchy had argued that such a clause constituted a mandatory public policy imperative under Art 3(10) by protecting workers from the effects of inflation and thereby ensuring good labour relations in Luxembourg. But, in response, the court pointed out that Luxembourg had failed to provide evidence to what extent the application to workers posted in Luxembourg was capable of achieving those objectives: rec 53ff.
72. Luxembourg, op cit n 94 supra, rec 29, referring to ECJ Joined Cases C-369/96 and C-376/96, Arblade and Others [1999] ECR I-8453, rec 30.
73. Luxembourg, ibid, rec 29.
74. ibid, rec 30ff.; 49ff. Cf also the Opinion of Advocate General Trstenjak, para 42.
75. J. Malmberg and T. Sigeman, 'Industrial Actions and EU Economic Freedoms: The Autonomous Collective Bargaining Model Curtailed by rhe European Court of Justice', (2008) 45 Common Market Law Review 1115, at 1145.
76. ibid; Joerges and Rödl, op cit n 102 supra; for further background, cf B. Bercusson, 'The Trade Union Movement and the European Union: Judgment Day', (2007) 13(3) European Law Journal 279. Moreover, critics accuse the court of establishing a state of affairs proposed by the Commission in the Bolkestein Directive on Services (Proposal COM (2004) 2 final); a proposal which was subsequently withdrawn in the democratic process leading to the final Services Directive 2006/123/EC. But the complex history of the Directive weights against this reading and supports rather the argument that, in deciding not to follow Advocate General Bot, the court acted within the legislative framework and so remained faithful to the compromise achieved by the democratic process at the European level. In Davies' definitive account, the legislative history is the story of attempts to reconcile the desire to increase cross-border service with continued autonomy of domestic labour law. The labour-importing Member States had, in this situation, a strong hand because of the ECJ's Rush jurisprudence (Rush Portuguesa [1990] ECR I-1417), according to which Community law does not preclude Member States from extending their legislation, or collective labour agreements, to any person who is employed, even temporarily, within their territory, no matter in which country the employer is established. Nonetheless, providers and users of cross-border services in the construction industry and the European Commission allied to press for some restrictions on host-state discretion in this area, given the recognition of the need for at least a minimal harmonisation on the provision of services. The initial proposal by the Commission was to impose a time condition: the ECJ's Rush ruling would only apply to postings of more than three months; however, the Member States did not accept this policy. The eventual compromise was a directive which recognises the primacy of the law and collective agreements in the host country as the regulatory framework for the employment conditions of posted workers, but limits the measures having such primacy to a narrowly defined core of mandatory rules defined in Art 3.1. The exacting research undertaken by Menz on national response strategies for Europeanisation suggests that complex arrangements at the national level are widespread and that judicial vigilance with regard to those arrangements is legitimate: G. Menz, Varieties of Capitalism and Europeanization. National Response Strategies to the Single European Market (Oxford University Press, 2008).
77. See the website available at http://www.bmas.de/coremedia/generator/26986/2008__07__16__symposium__eugh__kokott.html.
78. For an instructive overview, cf A. Davesne, 'The Laval Case and the Future of Labour Relations in Sweden', (2009) 1 Les Cahiers Européens. But see also for the Laval Committee, C. Stråth, Action in Response to the Laval judgment, Swedish Government Official Reports, Stockholm, December 2008, available at http://www.sweden.gov.se/content/1/c6/11/77/22/fa71ed8c.pdf and, as to the subsequent endorsement of the proposal by the government, http://www.sweden.gov.se/sb/d/586/a/133290.
79. ECJ, Case C-144/04, Mangold v Helm, 22 November 2005.
80. Section 14(1) TzBfG permits the conclusion of fixed-term contracts if there are objective grounds for doing so, as enumerated in a list. Section 14(2) TzBfG permits the conclusion of up to three fixed-term employment contracts without objective justification for the first two years of employment with a specific employer ('new employment exception'). Section 14(3) TzBfG permits conclusion of a fixed-term employment contract without justification, if the worker has reached the age of 58 by the time the fixed-term contract begins; a threshold which was later lowered to the age of 52 for the period between 2003 and 2006. Section 14(3) also prohibits the transformation of an employment contract of unlimited duration into a fixed-term contract.
81. Mangold, op cit n 123 supra, para 75.
82. Opinion of Advocate General Geelhoed, ECJ, Case C-13/95, Chacón Navas, rec 50.
83. Mangold, op cit n 123 supra, para 89.
84. ibid, para 56. See also D. Schiek, 'The ECJ Decision in Mangold: A Further Twist on Effects of Directives and Constitutional Relevance of Community Legislation', (2006) 35(3) Industrial Law Journal 329.
85. BVerfG, 2 BvE 2/08 vom 30 June 2009, English version available at http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html.
86. ibid, para 249. As the BVG summarises, the reserved domains are 'decisions on substantive and formal criminal law (1), on the disposition of the police monopoly on the use of force towards the interior and of the military monopoly on the use of force towards the exterior (2), the fundamental fiscal decisions on public revenue and public expenditure, with the latter being particularly motivated, inter alia, by social-policy considerations (3), decisions on the shaping of circumstances of life in a social state (4) and decisions which are of particular importance culturally, for instance as regards family law, the school and education system and dealing with religious communities (5)'.
87. J. Rawls, 'The Idea of an Overlapping Consensus', (1987) 7(1) Oxford Journal of Legal Studies 1, at 9.
88. Rawls, Political Liberalism (Columbia University Press, 1993), at 159ff and 161.
89. Rawls, op cit n 150 supra, at 7; Rawls, op cit n 151 supra, at xlviii.
90. Rawls, op cit n 151 supra, at 166.
91. As L. Wildhaber, http://www.echr.coe.int/NR/rdonlyres/2738F4D8-C03C-4E94-BF6E-CD8E83D9C6DC/0/2004_Johannesburg_Constitutional_Court.pdf former president of the ECHR, points out at, (footnotes omitted) with regard to margin of appreciation, 'Without going into details one could roughly summarise the gist of the court's case-law in this respect by saying that the larger the common ground in the law and practice of the Contracting States, the narrower the margin of appreciation will be for States that depart from the European consensus, whilst diversity in law and practice pleads in favour of a wider margin. One could hardly find a better illustration of this approach than in the court's caselaw on transsexualism, which has recently seen some quite interesting developments. In the Cossey judgment from 1986 against the United Kingdom, the court found that the nonrecognition for legal purposes of a post-operative transsexual's new sexual identity did not amount to a violation of Article 8 of the Convention, as the respondent State had not exceeded its margin of appreciation. Concerning the scope of this margin, the court noted that at that time there was little common ground among the Contracting States in this area and that, generally speaking, the law appeared to be in a transitional stage. Accordingly, this was an area in which Contracting Parties enjoyed a wide margin of appreciation. This approach was basically confirmed in a number of subsequent cases, all against the United Kingdom. Yet in the recent landmark judgment in the case of Christine Goodwin v. the United Kingdom, the Grand Chamber of the Court overturned the case-law on this issue and found a violation of Article 8, relying inter alia on .the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals. Thus the respondent Government could no longer in the court's opinion claim that the matter fell within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right claimed by the applicant. In other words, comparative law considerations here had the effect of sizing down the margin of appreciation from the question whether to the question how gender reassignment was to be legally recognised'.
92. On a related idea of a denationalisation, cf G. de Burca and O. Gerstenberg, 'The Denationalisation of Constitutional Law, Harvard International Law Journal (2006) 47(1) 243.
93. Sabel and Zeitlin, 'Learning from Difference', (2008) 14(3) European Law Journal 271.
94. D. Kennedy, 'One, Two, Three Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream', (2007) 31 New York University Review of Law and Social Change 641; but see D. Kennedy, emphasising the role of constructive interpretation or strategic 'legal work', in 'A Left Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation', in Legal Reasoning, Collected Essays (The Davis Book Publishers, Co, 2008), 154-173, at 158.
95. P.-M. Dupuy, 'The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice', (1998-1999) 31 New York Journal of International Law and Politics 791.
96. M. Kumm, 'The Jurisprudence of Constitutional Conflict', (2005) 11(3) European Law Journal 62. He explains the principle of best fit as follows (at 286): 'The task of national courts is to construct an adequate relationship between the national and the European legal order on the basis of the best interpretation of the principles underlying them both. The right conflict rule or set of conflict rules for a national judge to adopt is the one that is best calculated to produce the best solutions to realise the ideals underlying legal practice in the European Union and its Member States. Just as the constrains that judges face are not appropriately defined exclusively by reference to a rule of recognition, the resources that are available to guide their decision-making are not ultimately defined by an ultimate legal rule, but by legal practice seen as a whole. The relevant question is, therefore: what is the interpretation of the relationship between national constitutions and the EU constitution that best fits and justifies legal practices in the European Union, seen as a whole? Or alternatively: what makes national and European constitutional practice in Europe appear in its best light?'
97. cf B. Ackerman, 'The New Separation of Power', (2000) 113 Harvard Law Review 633, professional, democracy and protection of fundamental rights.
98. For a most recent restatement and summary, see J. Habermas, 'The Constitutionalisation of International Law and the Legitimation Problems of a Constitution for World Society', Constellations 444, (2008) 15(4) .
99. Habermas, in his book The Divided West (Polity, 2006), at 143, writes: 'If the international community limits itself to securing peace and protecting human rights, the requisite solidarity among world citizens need not reach the level of the implicit consensus on thick political value-orientations that is necessary for the familiar kind of civic solidarity among fellow-nationals. Consonance in reactions of moral outrage toward egregious human rights violations and manifest acts of aggression is sufficient. Such agreement in negative affective responses to perceived acts of mass criminality suffices for integrating an abstract community of world citizens. The clear negative duties of a universalistic morality of justice - the duty not to engage in wars of aggression and not to commit crimes against humanity - ultimately constitute the standard for the verdicts of international courts and the political decisions of the world organisation. This basis for judgment provided by common cultural dispositions is slender but robust'.
100. On one reading, Habermas' position can be understood as an extension to the global level beyond the state of his idea that deliberative democracy depends on a vigilant public sphere. Read from a different standpoint, his essay suggests an approximation to the Rawlsian view, which sees international organisations as a compliment to, and continuation of, an already existing contractarian framework.
101. The following draws on J.H.H. Weiler, 'On the Power of the Word: Europe's Constitutional Iconography', International Journal of Constitutional Law, (2005) 3
102. 173; 'A Constitution for Europe? Some Hard Choices', (2002) 40(4) Journal of Common Market Studies 563.
103. Weiler, 'On the Power of the Word', ibid, at 188. On constitutional patriotism generally, cf now J.-W. Müller, Constitutional Patriotism (Princeton University Press, 2006).
104. A view close to ours is Stone Sweet's account of constitutional pluralism. He proposes a perspective that considers the international system's pluralist and constitutionalist features simultaneously and thereby overcomes the dichotomy between pluralism and constitutionalism. But he develops his view from an external or behaviouralist perspective; see his 'Constitutionalism, Legal Pluralism, and International Regimes', (2009) 16 Indiana Journal of Global Legal Studies 621.
105. On the debate on reasonable disagreement in constitutional interpretation, see F. Michelman, 'Unenumerated Rights Under Popular Constitutionalism', (2006) 9 University of Pennsylvania Journal of Constitutional Law 121.
106. In fairness to Halberstam, however, the treatment of rights, voice and expertise is preliminary and it is not clear in what way they are to constrain constitutional adjudication.