Chapter One presents a normative theory of judicial review that relies on distinctions among strong, weak, and deferential judicial review. In a system of strong review, judicial decisions applying the Constitution are not subject to legislative override. In a system of weak review, judicial decisions are subject to legislative override. The chapter defends three main normative arguments. First, courts should apply strong judicial review in election-law cases to enhance the quality of representative democracy and ensure that every citizen has an equally effective voice in choosing our elected legislators. Second, courts should apply weak judicial review for most individual rights claims. Courts can provide robust protection for individual rights by applying federal statutes and international human rights treaties, instead of applying the Constitution, as the primary source of protection for individual rights. Third, courts should apply deferential review for claims involving federalism-based limits on Congress’s legislative powers. To protect state autonomy, the Court should exercise self-restraint to curb judicial violations of the Tenth Amendment.

Chapter Five presents historical analysis to establish two key points that lay a foundation for the normative argument presented in Chapter Six. First, throughout the nineteenth century, federal courts applied a system of weak judicial review in which they enforced treaty-based rules to protect individual rights from government infringement. Therefore, the type of weak review system I am proposing in Chapter Six has deep historical roots in American public law. Second, due to a largely invisible constitutional transformation that occurred between 1945 and 1965, international human rights treaties are not currently available to U.S. courts as a source of judicially enforceable rights. However, under current constitutional understandings, Congress has the power to make human rights treaties judicially enforceable by enacting an appropriate statute to that effect.

From the earliest weeks of the pandemic, courts and commentators turned to Jacobson v. Massachusetts for guidance. The 1905 Supreme Court case upheld a statute authorizing local boards of health to make smallpox vaccination compulsory if, in the board’s opinion, it was necessary for the public health. Led by the Fifth Circuit, many courts interpreted Jacobson as dictating a highly deferential “suspension” standard for judicial review of public health emergency orders – a throwback to the standard commonly applied to any constitutional violation in 1905. Judges relied on Jacobson to uphold infringements upon abortion rights, voting rights, and freedoms of worship, assembly, association, and movement. In a November 2020 decision, the Supreme Court majority apparently rejected the Jacobson suspension standard, at least for Fourteenth Amendment claims. This chapter parses the fractured opinions in Roman Catholic Diocese of Brooklyn v. Cuomo and subsequent lower court opinions for indications of Jacobson’s continued vitality as a lodestar for public health powers. The chapter rejects the Jacobson suspension doctrine in favor of a broader reading that provides guidance for judicial review on separation of powers and federalism questions as well as individual rights. Jacobson offers enduring and flexible guidance on the two tensions at the heart of public health law and policy, which have been brought into stark relief by the pandemic but will continue to be litigated long after the COVID-19 threat has subsided: first, the tension between individual rights and the common good; and second, the tension between bureaucratic expertise and democratic accountability.

The twenty-four accessible and thought-provoking essays in this volume present innovative new scholarship on Japan’s modern history, including its imperial past and transregional entanglements. Drawing on the latest Japanese and English-language scholarship, it highlights Japan’s distinctiveness as an extraordinarily fast-changing place. Indeed, Japan provides a ringside seat to all the big trends of modern history. Japan was the first non-Western society to become a modern nation and empire, to industrialize, to wage modern war on a vast scale, and to deliver a high standard of living to virtually all its citizens. Because the Japanese so determinedly acted to reshape global hierarchies, their modern history was incredibly destabilizing for the world. This intense dynamism has powered a variety of debates and conflicts, both at home and with people and places beyond Japan’s shores. Put simply, Japan has packed a lot of history into less than two centuries.

The word “dignity” is mentioned three times in the Indonesian Constitution, in Article 28 G(1), Article 28 H(3), and Article 34(2). While “dignity” in Article 28 G(1) is mentioned in the context of civil and political rights, both Article 28 H(3) and Article 34(2) mention “dignity” in the context of the rights of social security. In this chapter, the Indonesian Constitutional Court’s decisions on human dignity will be critically analyzed to illustrate how the Court interprets the concept of “dignity” differently in those articles. Arguably, the Indonesian Court takes the position that human dignity under individual rights should be limited but that human dignity under socioeconomic and cultural rights should be promoted.

Human rights have become a principle and a value that have increasingly gained the support of various segments of society. Human rights are often associated with democracy, the rule of law, the civilizing process and human dignity. They are also associated with the idea that everyone, anywhere and regardless of their citizenship status, has basic rights, which must be respected by others and the state (see, among others, Sen, 2004).

This chapter introduces the jurisprudence of Ronald Dworkin. It outlines the various components of his liberal individualistic theory and how this conceptualises group phenomena including religion. It notes how English law is largely based on this model, highlights its deficiencies as regards the regulation of religion, and traces its declining influence from 2016. It argues that liberal individualism is a suboptimal model on which to base the law of religion because it takes insufficient account of groups and civil society.

Chapter 5 describes the law regarding speech aimed at religion and morality. Against a backdrop of oppressive prosecutions and antiabolitionist violence, Massachusetts saw denials of the constitutionality of libel law and a rising insistence on individual rights to freedom of conscience and expression. Both the pornographic classic Fanny Hill and the first birth control texts became cheaply available in Massachusetts, and lawyers adapted the law to prosecute obscenity. Nova Scotia likely had fewer such texts, and outside Halifax legal actors also had fewer texts to refer to in drafting indictments. On the religious front, Nova Scotia’s basically voluntaristic environment made religion political, with the Anglican elite on the defensive, but disputes over belief reached neither the legislature nor courts. Massachusetts, however, gradually eliminated establishment, leaving winners and losers. Free Thinkers evoked concern, especially the Englishwoman Frances Wright, whose lectures challenged Christianity, capitalism, slavery and patriarchy. Many understood republican ideals as justifying majoritarian violence, a logic that did not resonate in Nova Scotia, where disputes centered instead on configurations of institutional power.

This chapter explains the concept of reasonable multiculturalism. Building on the Rawlsian notion of reasonableness, and on Kymlicka’s formulation of multiculturalism, the mechanisms for reconciliation between liberalism and multiculturalism are outlined. What are the boundaries of multiculturalism within the framework of liberal democracy? What are the boundaries of state interference in the business of minority cultures whose norms and practices are at odd with liberal democracy? Reasonability assumes acceptance of the underpinning shared principles. Cultures that do not adhere to these principles are perceived as less reasonable. The extent of reasonability varies. But lacking reasonability does not immediately entail that the liberal majority should intervene in the business of the subcultures. Interference is warranted to restore justice. The chapter discusses the concept of mutual respect, distinguishing between two forms of cultural pluralism – ‘multination’ and ‘polyethnic’ states – and between two kinds of rights that a group might claim: the first involves the right of a group against its own members, the second involves the right of a group against the larger society. Furthermore, the nature of liberal tolerance and the mechanisms of deliberative democracy are explained, the latter instrumental for resolving disputes in a liberal democracy in a civil, non-violent way.

This chapter notes the challenge of maintaining and building a democratic politics in the face of increasing inequality and the power of capital over the political process. It argues that among the main proponents of democracy, organized women have been increasingly effective in achieving inclusion in the polity.  Historically, they have done so by advocating solidaristic goals rooted in the social good, rather than by focusing on individual success.  While the advent of free market economics in the 1970s created divisions among them, there is evidence that in the early twenty-first century, women may once again be unifying around an egalitarian politics that will help to sustain a rising democracy.

This concluding chapter summarizes the book arguments and reflects on the legacies of the war, the problems at restoring business as usual after a long period of state of exception, and the difficulties of squaring sovereignty, national interests, humanity and human rights. The war and its aftermath profoundly changed the population structure of vast territories and generated a proliferation of migration control policies and new citizenship claims from those who had fought on the battlefront or suffered because of the war. It reshaped economic relationships and the balance of power and had a big impact on reorienting migration flows. The First World War marked a departure from the quest for the universalism of rights and a shift from individuals to collectivities defined in terms of identity, belonging, language, ethnicity, religion or class. Establishing the equation between aliens and dangerousness, the First World War consolidated the idea that policing borders, selecting those who can live in the territory of a country, expelling the unwanted, preventing them from entering, granting and stripping people of their citizenship were (and after the war continued to be) the main prerogatives of the sovereign state, which had the power to decide whom to accept, expel, grant asylum to, include, exclude and endow with rights.

Discussion on human rights before the International Tribunal for the Law of the Sea (ITLOS or Tribunal) often refers to its ‘considerations of humanity’ dictum. Yet this is just one way the Tribunal takes into account the interests and rights of individuals affected by law of the sea disputes. This chapter uncovers multiple modes of engagement of ITLOS with human rights – some subtle, some bold – across three types of procedure: prompt release, provisional measures and merits cases. It illustrates how ITLOS has achieved a ‘humanisation’ of the obligation of prompt release through its context- and purpose-based interpretation; likewise, parties increasingly invoke, and ITLOS tacitly relies upon, human rights as a basis for provisional measures. While the Tribunal’s reliance on individual rights in merits decisions remains limited to date, it may consider human rights on the basis of ‘reference provisions’ within UNCLOS, the ‘considerations of humanity’ dictum and the prohibition on abuse of rights. The analysis reveals that ITLOS has paved the way for human rights to be taken into account in law of the sea disputes and that UNCLOS provides a legal framework for it.

The introduction sets out the book’s approach to the great judgments of the European Court of Justice (ECJ) between 1961 and 1979. Each of the Court’s landmark cases will be analyzed in comparative context, in particular by contrast to the enforcement and escape mechanisms commonly employed in international trade treaties including the postwar General Agreement on Tariffs and Trade (GATT) and today’s World Trade Organization (WTO). The book will also discuss the explanations for these judgments put forward by some of the most influential lawyers then working at the Court, above all French ECJ judge and later President of the Court Robert Lecourt. The introduction sets out the argument that the greatest innovations of the European legal order, including the new role for private individuals and national courts provided for by the doctrines of direct effect and supremacy, were directly linked to addressing the practical problem of how to effectively enforce trade treaty obligations while prohibiting unilateral safeguards and inter-state retaliation.

This chapter discusses the Court’s 1964 judgment, Dairy Products, where the Court declared that self-help mechanisms of reciprocity and retaliation, so important in many trade treaty systems, were comprehensively prohibited within the European legal order. This judgment is often rightly understood as marking an essential difference between European law and general international law. This chapter demonstrates that the principle announced in Dairy Products was also directly connected to the direct effect and supremacy doctrines of European law, again as shown by national court enforcement of treaty obligations in other treaty systems, and by the writings of judge Lecourt.

This chapter builds on the detailed discussions of particular ECJ judgments earlier in the book to put forward a new way of understanding the founding of the European legal order. It includes both the doctrines establishing rights for individual litigants before national courts and the doctrines specifying new and demanding relationships between the European states, and demonstrates how each is related to the other. It concludes with a discussion of judge Robert Lecourt’s role in the early decades of the European Court of Justice.

This chapter discusses the Court’s 1972 judgment, International Fruit, where the Court denied that provisions of the General Agreement on Tariffs and Trade (GATT) should be granted direct effect within the European legal order. This judgment is often understood as the first of many instances in which the Court denied the direct effect of GATT, and later World Trade Organization (WTO), obligations. This chapter uses the Court’s rejection of direct effect in International Fruit to offer an improved understanding of the Court’s declaration of direct effect in Van Gend en Loos, highlighting its connections to the prohibition of inter-state retaliation and unilateral safeguard mechanisms within the European legal order.

This chapter discusses the Court’s 1963 judgment, Van Gend en Loos, where the Court declared that European law could be relied upon by private individuals before their national courts. The direct effect of European law is often understood as empowering private individuals and national courts, as supplementing the European Commission-initiated compliance procedure set out in Article 169 of the Treaty of Rome, and increasing the binding nature of European law. This chapter demonstrates that the direct effect of European law was also directly connected to the Court’s rejection of the possibility of inter-state retaliation within the European Economic Community. This is demonstrated both by advocacy of direct effect for other trade-related treaty systems, where reformers often wish to suppress retaliatory enforcement mechanisms, and by the writings of judge Lecourt, which demonstrate that this important aspect of direct effect was well recognized by one of the Court’s then most influential judges.