Ozan O. Varol’s research while affiliated with Lewis & Clark College and other places

From London to Libya, from Istanbul to Iceland, there is great interest among comparative constitutional scholars and practitioners about when a proposed constitution is likely to succeed. But what does it mean for a constitution to succeed? Are there universal criteria of success, and which apply across the board? Or, is the choice of criteria entirely idiosyncratic? This edited volume takes on the idea of constitutional success and shows the manifold ways in which it can be understood. It collects essays from philosophers, political scientists, empiricists and legal scholars, that approach the definition of constitutional success from many different angles. It also brings together case studies from Africa, Europe, Latin America, the Middle East and Asia. By exploring a varied array of constitutional histories, this book shows how complex ideas of constitutional success play out differently in different contexts and provides examples of how success can be differently defined under different circumstances.

Authoritarianism has been undergoing a metamorphosis. Historically, authoritarians openly repressed opponents by violence and harassment and subverted the rule of law to perpetuate their rule. The post- Cold War crackdown on these transparently authoritarian practices provided significant incentives to avoid them. Instead, the new generation of authoritarians learned to perpetuate their power through the same legal mechanisms that exist in democratic regimes. In so doing, they cloak repressive practices under the mask of law, imbue them with the veneer of legitimacy, and render anti-democratic practices much more difficult to detect and eliminate. This Article offers a comprehensive cross-regional account of that phenomenon, which I term "stealth authoritarianism." Drawing on rationalchoice theory, the Article explains the expansion of stealth authoritarianism across different case studies. The Article fills a void in the literature, which has left undertheorized the authoritarian learning that occurred after the Cold War and the emerging reliance on legal, particularly sub-constitutional, mechanisms to perpetuate political power. Although stealth authoritarian practices are more prevalent in nondemocracies, the Article illustrates that they can also surface in regimes with favorable democratic credentials, including the United States. In so doing, the Article aims to orient the scholarly debate towards regime practices, rather than regime types.

As Egypt underwent a tumultuous military-led transition from autocracy to democracy beginning in 2011, a chorus of commentators advocated a "Turkish model" for civil- military relations in Egypt's nascent democracy. That term is frequently invoked in both popular and academic discourse, but rarely defined. This article takes up the task of giving content to that elusive phrase. It begins by analyzing the composition, structure, and objectives of the Turkish military beginning with the Ottoman Empire. It then turns to May 1960, when the Turkish military staged its first direct intervention in republican politics by toppling an authoritarian government and installing democratically elected leaders after seventeen months of interim military rule.The article shows that the military played a crucial role in Turkish modernization and democratization during the coup and in its immediate aftermath-a role that has been largely obscured by the current portrayal of the Turkish military as a hegemonic and repressive institution. The article then explores why, following its initial democratization role after the 1960 coup, the military failed to retreat to the barracks and began to present impediments to democracy. It argues that the plethora of counter-majoritarian institutions established in the 1961 Constitution, drafted under military supervision following the 1960 coup, sparked frequent power vacuums in Turkey, prompting the military to stage political interventions to ensure stability. It further argues that the military's focus on domestic policy matters with its institutionalization in the National Security Council in the 1961 Constitution ensnared the military in domestic disputes, providing an impetus for the military to stage further interventions. The article then explains the recent exodus of the Turkish military from politics with the ascension to power of stable civilian governments and Turkey's accession process to the European Union. It concludes by offering observations and lessons for other nations seeking to normalize their civil-military relations. © The Author 2013. Oxford University Press and New York University School of Law. All rights reserved.

The prevailing conceptions of constitutions ordinarily characterize them as rigid and long-enduring, if not permanent, documents. This Article challenges that prevailing wisdom on both descriptive and normative grounds by providing the first systematic examination of temporary constitutions, exploring their costs and benefits, and providing prescriptions for their optimal use. A temporary constitution or constitutional provision, as this Article defines it, limits its own term and lapses at its expiration date unless reenacted through regular constitutional amendment procedures. Although underexplored and undertheorized, temporary constitutions have extensive historical pedigree and neglected benefits for constitutionalism. Temporary constitutions can reduce error costs associated with entrenching a norm in a durable constitution and promote incrementalism and experimentation in constitutional design by allowing constitutional drafters to consider a greater quality and quantity of information about the empirical effects of their constitutional choices. The use of temporary constitutions can also reduce cognitive biases that tend to predominate in constitutional moments and promote consensus building among constitutional designers by lowering the decision costs involved in negotiating and reaching a constitutional bargain. Finally, temporary constitutionalism can respond to the central critique of durable constitutions by easing the “dead hand” problem, which refers to the ability of the constitutional founders to entrench norms that bind future generations.

This Article challenges the prevailing and long-entrenched orthodoxy in constitutional theory that a constitutional role for the military in an emerging democracy necessarily hinders democratic progress. I argue that the ideal level of military involvement in a new democracy is not always zero and that certain militaries can play, and have played, a democracy-promoting role in the initial phases of a transition from autocracy to constitutional democracy. The conventional constitutional theory, which assumes that all militaries are hegemonic and praetorian institutions that must be completely disconnected from the civilian realm, has restrained innovative thinking on this important and timely topic. As the fourth wave of democratization sweeps across the Arab World, with attendant debates about the appropriate constitutional role for the military in post-authoritarian societies such as Egypt, this Article offers a timely theory of the democracy-promoting military. It argues that some militaries — what I call “interdependent” militaries — are capable of playing a democracy-promoting constitutional role in a post-authoritarian society because their self-interests often align with the conditions that James Madison and others have identified as conducive to the genesis of a constitutional democracy: institutional stability, political pluralism, and national unity. After theorizing the democracy-promoting military, the Article applies it to case studies. It analyzes the democracy-promoting constitutional role that the militaries in Turkey and Portugal played following respective military coups in 1960 and 1974 that toppled authoritarian regimes and established democracies. The Article concludes by examining the implications of this theory for the future of Egypt’s democracy.

This article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy. This article, which draws on fieldwork that I conducted in Egypt and Turkey in 2011, challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections. Following a democratic coup, the military temporarily governs the nation as part of an interim government until democratic elections take place. Throughout the democratic-transition process, the military behaves as a self-interested actor and entrenches, or attempts to entrench, its policy preferences into the new constitution drafted during the transition. Constitutional entrenchment may occur in three ways: procedural, substantive, and institutional. The article uses three comparative case studies to illustrate the democratic-coup phenomenon and the constitutional-entrenchment thesis: (1) the 1960 military coup in Turkey; (2) the 1974 military coup in Portugal; and (3) the 2011 military coup in Egypt.

In the debate about originalism in the United States, scholars have devoted scant attention to the question whether the United States stands alone in its fascination with originalism. According to the prevailing view, originalism is distinctively American and the study of comparative originalism is an oxymoron. This Article challenges that conventional view. Drawing on neglected Turkish-language sources, the Article analyzes, as a comparative case study, the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) to interpret the secularism provisions in the Turkish Constitution. Comparing the Turkish version of originalism to American originalism, the Article sheds light on broader debates in the United States about the origins, functioning, and limits of originalism. This comparative study calls into question the existing theories in the American legal literature about why originalism thrives in certain nations. This Article suggests a new hypothesis that views support for originalism as a cultural, not legal, phenomenon: Originalism blossoms in a nation when a political leader associated with the creation or revision of the Constitution has developed a cult of personality. The cult-of-personality hypothesis explains why originalism has thrived in nations such as Turkey and the United States, where the nation’s founders have developed a strong cult of personality, but has failed to find a strong and sustained following in nations such as Australia, where the founders are held in no special reverence. The Turkish case study is also instructive on the limits of originalism. Critics of originalism in the United States argue that originalism allows the dead hand of the past to rule an evolving society. In response to the critics, originalists note that the legislature has the option of amending the Constitution if its original meaning no longer comports with societal norms. But what if constitutional amendment were not an available option? The Turkish case study suggests that when the legislature lacks a plausible method - however difficult it may be - for amending the Constitution in times evolving societal norms, the continued use of originalism by the judiciary may motivate the legislature to place political constraints on the courts. In Turkey, the Constitutional Court’s embrace of originalism but rejection of legislative attempts to amend the Constitution led to the adoption of a court-packing plan in September 2010.

As law students quickly learn, the strict-scrutiny test governs challenges under the Equal Protection Clause to the government’s use of suspect classifications and infringement on certain fundamental rights. To survive strict scrutiny, the government bears the heavy burden of showing a compelling interest in drawing a suspect classification or infringing on a fundamental right and narrowly tailored means to achieve that interest. Over the years, strict scrutiny has expanded to serve as a bulwark against government intrusions on many fundamental rights and liberties in the United States Constitution – including the right to vote, marry, access the courts, and freedom of speech and association. At times, the United States Supreme Court was so demanding of the government in its application of strict scrutiny that no government action seemed capable of meeting its demands. This prompted the Supreme Court justices to counter, in at least eleven individual and majority opinions, that strict scrutiny was not strict in theory, but fatal in fact. So long as the government met its burden – albeit a highly demanding one – the Court would uphold the government action as constitutional. But times have changed. Strict scrutiny is strict no more. In its attempt to remedy the perceived rigidity of strict scrutiny, the Supreme Court overcorrected. The pendulum has now swung in the opposite direction. In a recent line of Supreme Court decisions, justices in majority and dissenting opinions have diluted the strict-scrutiny test with a strong dose of deference to the government. Out of these decisions emerges a test that is strict in theory, but accommodating in fact. This Article is an analysis and critique of deferential strict scrutiny. The Article reveals inconsistencies in the Court’s use of run-of-the-mill strict scrutiny and deferential strict scrutiny, which have left government actors uncertain about the constitutionality of their conduct and the lower courts in a quandary as to which version of strict scrutiny to apply and when. The Article argues that, if unconstrained, this newly minted version of strict scrutiny – which allows the government to avoid an exacting constitutional inquiry – puts at risk the very liberties that strict scrutiny was designed to protect.

This article is the second in which Dean Wing explores the notion of secularism in different societies. The first was Critical Race Feminism Lifts the Veil?: Muslim Women, France and the Headscarf Ban, 39 U.C. Davis Law Review 745 (2006) (with Monica Nigh Smith). The article abstracted here examines the past, present, and future of secularism in the Republic of Turkey. The co-author Ozan Varol is a Turkish national, who was able to access Turkish sources. Part II provides an overview of the principle of secularism generally, and in Turkey specifically, and describes how Turkish secularism differs from the Western notion of secularism. Part III discusses the role of religion in the Ottoman Empire, the predecessor to the modern day Turkey, in order to provide a background for the legal developments that occurred after the Empire's collapse. Part IV outlines the reforms that Turkish founding president Atatýrk and his supporters implemented following the downfall of the Ottoman Empire and demonstrates how a fundamentalist empire became a strictly secular government in less than twenty years. Part V provides a thorough examination of the various provisions of the Turkish Constitution that relate to secularism. Part VI demonstrates the application of the principle of secularism in Turkey by discussing the legal history of the ban against the wearing of the Islamic headscarf in Turkish educational institutions. This Part also analyzes the November 10, 2005 decision of the Grand Chamber of the European Court of Human Rights in Leyla Sahin v. Turkey, which upheld the Turkish government's ban and did not find it violated the European Convention on Human Rights. Finally, Part VII speculates on the future of secularism in Turkey and discusses whether it is possible to implement any fundamental changes in the regime.

Congress enacted the Anti-Terrorism Act to create a federal cause of action for torts arising out of acts of international terrorism that cause injuries to U.S. citizens. Even though victims have benefited from the Act, they have also faced significant hurdles in bringing their causes of action. Meeting the requirements for personal jurisdiction has been one of these major difficulties. Concerns over the lack of minimum contacts between the terrorist defendants and the United States sufficient to satisfy the requirements of due process have led many courts to conclude that they did not have personal jurisdiction over the defendants. This Note proposes three methods that courts can use to exert personal jurisdiction over terrorists under the Anti-Terrorism Act. First, by drawing an analogy to the plenary-power doctrine applied in the immigration-law context, this Note argues that courts should apply a limited view of substantive due process to assert personal jurisdiction over terrorists. Second, assuming, arguendo, that terrorists are entitled to full due-process protections, this Note asserts that a separate inquiry into personal jurisdiction is unnecessary because a due-process analysis is subsumed into the Anti-Terrorism Act. Finally, assuming, arguendo, that a traditional due-process inquiry is required, this Note outlines general principles that courts can use in exerting personal jurisdiction over terrorist defendants.