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The function of a constitutional court is to protect people. That is why such courts act in one of two ways. When an issue arises, such a court might strike down a law or regulation in order to affirm a right. For instance, a decision of the U.S. Supreme Court has found that people do have some rights to distribute literature within privately owned shopping malls. Or that states can’t entirely outlaw abortions, notwithstanding any law to the contrary. Sometimes a constitutional court will uphold a challenged statute or regulation. For instance, a rule prohibiting women from working a certain job in a nuclear plant was upheld. The rule had been challenged by a woman seeking to obtain the job. But it was found that the radiation present during the work performed in that particular job would harm a fetus and that women naturally do not know at once when they are pregnant. Whatever you might think of the holding, it is a good illustration of a type of decision which upholds a rule or regulation which forbids something.

But the Lithuanian Constitutional Court in regard to the citizenship question has managed to create a situation which is, I think, rather novel. Again, constitutional courts ordinarily strike down a certain measure or practice, or, sometimes, they affirm the measure or practice by refusing to strike it down. Instead, the Lithuanian constitutional court … has created a situation wherein they have mandated that something which was and is considered lawful be unlawful. (Several separate parliaments have passed laws permitting a particular outcome.) (Specifically, the lawful outcome of which I speak is the retention of Lithuanian citizenship upon the obtaining of a second citizenship.) It seems to me that in comparative constitutional law such a situation is extremely rare and unusual.


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