Constitutional Migration

Constitutional Migration (UK)

Some sources readily identifiable through process of constitutional modelling and explicit reference to sources

e.g. Costa v ENEL, Factortame

Constitutional Migration (UK)

Other borrowings, while not explicit, have a history in a particular system that makes them identifiable through association

e.g. flow of certain principles between civil and common law states

Constitutional Migration (UK)

Historical impact of imperialism also makes UK as a source readily identifiable re: colonies, founding countries (Davis)

e.g. South Africa, Canada, Australia

Constitutional Migration (UK)

Can become muddled when role in a country ends and jurisprudence/precedent develops independently

e.g. USA

Constitutional Migration (UK)

Judicial interpretation may carry implications for PS, particularly re: community law

UK praised for 'hybrid' model (Goldsworthy), s 2 HRA allows review but P has final say

Constitutional Migration (UK)

Risk of transformation addressed by fit criteria (Tabbe and Tsai)/geoelogical approach (Choudhry), gives reasoning for migration

e.g. Roper v Simmonds

Constitutional Migration (UK)

Imperialism issue

e.g. Impact on South Africa

Constitutional Migration (USA)

Founding Fathers influenced by English liberals (such as John Locke) and Magna Carta

Constitutional Migration (USA)

US SC widely acknowledged as 'leading model' due to prestige

Constitutional Migration (USA)

Some sources readily identifiable through process of constitutional modelling and explicit reference to sources

e.g. Prasad, Justice Hedge re: India, German FCC

Constitutional Migration (USA)

Can become muddled when role of a country ends and jurisprudence/precedent develops independently

e.g. UK

Constitutional Migration (USA)

Transformation/hedging (Tabbe and Tsai)/decodification (Merryman) concern, particularly when lacking transparency (Tabbe and Tsai)

e.g. Lawrence v Texas cf Bowers v Hardwick

Constitutional Migration (USA)

Transformation a good thing because they are means of adapting to different cultures, histories etc (Hanafin), requires transparency (Tabbe and Tsai)

Constitutional Migration (USA)

Risk of transformation addressed by fit criteria (Tabbe and Tsai)/geneological approach (Choudhry), gives reason for migration

e.g. Roper v Simmonds, although Scalia not happy

Constitutional Migration (USA)

Imperialist issue

e.g. Influence on India and South Africa

Constitutional Migration (Germany)

Some sources readily identifiable through process of constitutional modelling and explicit reference to sources

Constitutional Migration (Germany)

Risk of transformation addressed by fit criteria (Tabbe and Tsai)/geneological approach (Choudhry), gives reason for migration

e.g. Luth, Stubing, Spiegle, Roe v Wade

Constitutional Migration (Germany)

Imperialism issue

e.g. Influence of South Africa

Constitutional Migration (SA)

Sources explicitly referred to in judgements (s 39 Constitution)

e.g. S v Bawayna

Constitutional Migration (SA)

Some sources readily identifiable through process of constitutional modelling and transplants and explicit reference to source

e.g. Influence of Germany, US and UK all present (Davis)

Constitutional Migration (SA)

Can become muddled when role of a country ends and jurisprudence/precedent develops independently (less of an issue because of transparency)

Constitutional Migration (SA)

Transformation a good thing because they are means of adapting to different cultures, histories etc (Hanafin), requires transparency (Tabbe and Tsai)