Jewish Past, Mnemonic Constitutionalism and the Politics of Citizenship

For this symposium essay, I will focus on the Jewish past, with its tragedies extending beyond and preceding the Holocaust as a master narrative unfolded by mnemonic constitutionalism. Specifically, I will reflect on how citizenship laws – as the foundational cluster of constitutional law in liberal democracies, including the countries without a formal constitution – have built constitutional ontologies upon the Jewish past and the “never again” theme through three central examples involving “Jewish citizens”.

28. Juli 2024

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Never Again – Ever Again

The “Never Again” is the desperate evocation of something impossible. Nothing prevents people from expanding the arsenal of their crimes with ever newer, ever more artificial, more scientific methods and instruments, and from using them. Just as grass and flowers mercifully spread over the ruins of the ovens, the fields fertilized with ashes, all attempts to bear witness to the crimes, to keep memory alive as a warning, dissolve into the history of the victors, which has dominated everything else in all times of human history.

27. Juli 2024

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The »Never Again« Imperatives in Chinese Constitutions

This essay aims to provide a Chinese perspective on the question of traumas and the Never Again imperative. It will first place the question in the long history of constitution-making in China, taking the view that constitutional narratives are context-driven, shaped by particular historical processes, and addressing particular historical concerns of respective nation-states, each with its trauma and Never Again imperatives. This essay then brings the current 1982 constitution into focus, highlighting the trauma it is designed to address and assessing the sincerity and effectiveness of the commitment.

26. Juli 2024

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Never Again in Russia

In the Soviet Union and later in Russia, reference to World War II played a central role in the decades after 1945. The “never again” narrative in Russia takes a very specific form: The focus is not on the Holocaust but on the Victory in the “Great Patriotic War” against fascism, the increase of power and status in the international system that this has brought, and the perpetuation of the present and timeless actuality of war in a mostly imperial and post-imperial context. The discourse on Victory against fascism undergoes a paradoxical development, from a way of commemorating collective trauma to the justification and glorification of new wars.

25. Juli 2024

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The Collective Memory of Trauma and Why it Still Matters

Holocaust historian Jan Tomasz Gross claimed in a 2015 article that the immigration crisis in Europe is inextricably linked to the way Europeans today contend with their group’s behavior during the Holocaust. What does the influx of mostly Muslim immigrants to Europe have to do with how Europeans treated their Jewish population eighty years ago? According to Gross, the answer lies in whether nations acknowledge their historical culpability, most notably in the case of Germany, or whether they actively try to deny any wrongdoing, such as in the cases of Poland and Hungary.

24. Juli 2024

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Never Again. And Not Quite.

Those who build new public law act with the past hovering over their shoulders. Rejecting regimes of horror explains much of the content of new constitutions. Aversive constitutionalism – in which constitutionalists overtly steer away from a country’s appalling pasts – guides how they understand these new texts. On balance, even among those who disagree over precisely how the past is memorialized as “never again” in new constitutions, evidence shows that the horrors of the past influence public law in the present much more than do the dreams of some ideal future.

23. Juli 2024

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Administrative and Citizen Interpretations of Unwritten Constitutional Principles and Constitutional Silences

Looking at Canadian law, this blog posts argues that administrative agencies should be able to interpret and articulate unwritten constitutional principles when exercising their discretionary powers, and that these interpretations ought to be deferred to by courts. This would also encourage citizens to put forward their own interpretations of unwritten constitutional principles, fostering a participatory approach to constitutional interpretation.

22. Juli 2024

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Never Again Say »Never Again«

“Never Again” is one of those slogans on which practically everyone can agree. How can one not? (Unless you belong to the flat-earth Holocaust-denial lunatic fringe). When we use “Never Again” it is, of course, a shorthand to the enormity of German National Socialism. The pledge “Never Again” is absolute in time: Never again. It is absolute in space too: “That” cannot and should not ever take place anywhere. It is universal: It bridges Left and Right, North and South, Rich and Poor. Standing at the barricades under the “Never Again” banner is both powerful and self-empowering. But herein lies its potential for abuse. What exactly is the “that” which must never happen again?

22. Juli 2024

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»Never Again«

“Never again” is, first and foremost, a story. It’s a story about our collective fears, anxieties, and aspirations, those moments and events that we have promised ourselves that will never be repeated. The Jewish story is interwoven with the Holocaust—the killing of six million Jews in Europe and the urgency of the re-establishment of a Jewish state to solve the problem of Jewish homelessness. Yet the constitutional and international meaning of “never again” depends on one’s position and point of view, and it changes over time. The chain reaction that began with the horrors of WWII continues to drive constitutional and international agendas. It is clear that “history talks,” but in which direction?

22. Juli 2024

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Ensuring the Mission of Public Service Broadcasters

Public Service Broadcasters (PSBs) are publicly organised and funded broadcasters, organised by each of the EU’s Member State with a great degree of discretion and under a unique legal framework. Politicised interventions and the decline of PSBs’ independence threaten their ability to adequately perform their role and offer citizens a high-quality public service which meets the public’s democratic and cultural needs. The politicisation of PSBs by national authorities, coupled with the increasing concerns about media freedom, shows that some type of regulatory intervention is necessary.

16. Juli 2024

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