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The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It
by Russ Feingold Peter PrindivilleA former U.S. senator joins a legal scholar to examine a hushed effort to radically change our Constitution, offering a warning and a way forward.Over the last two decades, a fringe plan to call a convention under the Constitution's amendment mechanism—the nation's first ever—has inched through statehouses. Delegates, like those in Philadelphia two centuries ago, would exercise nearly unlimited authority to draft changes to our fundamental law, potentially altering anything from voting and free speech rights to regulatory and foreign policy powers. Such a watershed moment would present great danger, and for some, great power.In this important book, Feingold and Prindiville distill extensive legal and historical research and examine the grave risks inherent in this effort. But they also consider the role of constitutional amendment in modern life. Though many focus solely on judicial and electoral avenues for change, such an approach is at odds with a cornerstone ideal of the Founding: that the People make constitutional law, directly. In an era defined by faction and rejection of long-held norms, The Constitution in Jeopardy examines the nature of constitutional change and asks urgent questions about what American democracy is, and should be.
The Constitution in the Courts: Law or Politics?
by Michael J. PerryIn the modern period of American constitutional law--the period since the U.S. Supreme Court outlawed racially segregated public schooling in Brown v. Board of Education (1954)--there has been a persistent and vigorous debate in the United States about whether the Court has merely been enforcing the Constitution or whether, instead, in the guise of enforcing the Constitution, the Court has really been usurping the legislative prerogative of making political choices about controversial issues. In this book, Professor Perry carefully disentangles and then thoughtfully addresses the various fundamental issues at the heart of the controversy: What is the argument for "judicial review"? What approach to constitutional interpretation should inform the practice of judicial review? How large or small a role should the Court play in bringing the interpreted Constitution to bear in resolving constitutional conflicts? To what extent are the Court's most controversial modern decisions--for example, decisions about racial segregation, discrimination based on sex, abortion, and homosexuality--sound; to what extent are they problematic? The Constitution in the Courts is a major contribution to one of the most fundamental controversies in modern American politics and law.
The Constitution in the Supreme Court: The First Hundred Years, 1789-1888
by David P. CurrieCurrie's masterful synthesis of legal analysis and narrative history, gives us a sophisticated and much-needed evaluation of the Supreme Court's first hundred years. "A thorough, systematic, and careful assessment. . . . As a reference work for constitutional teachers, it is a gold mine."—Charles A. Lofgren, Constitutional Commentary
The Constitution in the Supreme Court: The First Hundred Years, 1789-1888
by David P. CurrieCurrie's masterful synthesis of legal analysis and narrative history, gives us a sophisticated and much-needed evaluation of the Supreme Court's first hundred years. "A thorough, systematic, and careful assessment. . . . As a reference work for constitutional teachers, it is a gold mine."—Charles A. Lofgren, Constitutional Commentary
The Constitution in the Supreme Court: The Second Century, 1888-1986
by David P. CurrieThe Constitution in the Supreme Court: The Second Century traces the development of the Supreme Court from Chief Justice Fuller (1888-1910) to the retirement of Chief Justice Burger (1969-1986). Currie argues that the Court's work in its second century revolved around two issues: the constitutionality of the regulatory and spending programs adopted to ameliorate the hardships caused by the Industrial Revolution and the need to protect civil rights and liberties. Organizing the cases around the tenure of specific chief justices, Currie distinguishes among the different methods of constitutional exegesis, analyzes the various techniques of opinion writing, and evaluates the legal performance of different Courts. "Elegant and readable. Whether you are in favor of judicial restraint or judicial activism, whatever your feelings about the Warren Court, or the Renquist Court, this is a book that justifies serious study."—Robert Stevens, New York Times Book Review
The Constitution in the Supreme Court: The Second Century, 1888-1986
by David P. CurrieThe Constitution in the Supreme Court: The Second Century traces the development of the Supreme Court from Chief Justice Fuller (1888-1910) to the retirement of Chief Justice Burger (1969-1986). Currie argues that the Court's work in its second century revolved around two issues: the constitutionality of the regulatory and spending programs adopted to ameliorate the hardships caused by the Industrial Revolution and the need to protect civil rights and liberties. Organizing the cases around the tenure of specific chief justices, Currie distinguishes among the different methods of constitutional exegesis, analyzes the various techniques of opinion writing, and evaluates the legal performance of different Courts. "Elegant and readable. Whether you are in favor of judicial restraint or judicial activism, whatever your feelings about the Warren Court, or the Renquist Court, this is a book that justifies serious study."—Robert Stevens, New York Times Book Review
The Constitution in the Supreme Court: The First Hundred Years, 1789-1888
by David P. CurrieCurrie's masterful synthesis of legal analysis and narrative history, gives us a sophisticated and much-needed evaluation of the Supreme Court's first hundred years. "A thorough, systematic, and careful assessment. . . . As a reference work for constitutional teachers, it is a gold mine."—Charles A. Lofgren, Constitutional Commentary
The Constitution in the Supreme Court: The Second Century, 1888-1986
by David P. CurrieThe Constitution in the Supreme Court: The Second Century traces the development of the Supreme Court from Chief Justice Fuller (1888-1910) to the retirement of Chief Justice Burger (1969-1986). Currie argues that the Court's work in its second century revolved around two issues: the constitutionality of the regulatory and spending programs adopted to ameliorate the hardships caused by the Industrial Revolution and the need to protect civil rights and liberties. Organizing the cases around the tenure of specific chief justices, Currie distinguishes among the different methods of constitutional exegesis, analyzes the various techniques of opinion writing, and evaluates the legal performance of different Courts. "Elegant and readable. Whether you are in favor of judicial restraint or judicial activism, whatever your feelings about the Warren Court, or the Renquist Court, this is a book that justifies serious study."—Robert Stevens, New York Times Book Review
The Constitution in the Supreme Court: The Second Century, 1888-1986
by David P. CurrieThe Constitution in the Supreme Court: The Second Century traces the development of the Supreme Court from Chief Justice Fuller (1888-1910) to the retirement of Chief Justice Burger (1969-1986). Currie argues that the Court's work in its second century revolved around two issues: the constitutionality of the regulatory and spending programs adopted to ameliorate the hardships caused by the Industrial Revolution and the need to protect civil rights and liberties. Organizing the cases around the tenure of specific chief justices, Currie distinguishes among the different methods of constitutional exegesis, analyzes the various techniques of opinion writing, and evaluates the legal performance of different Courts. "Elegant and readable. Whether you are in favor of judicial restraint or judicial activism, whatever your feelings about the Warren Court, or the Renquist Court, this is a book that justifies serious study."—Robert Stevens, New York Times Book Review
The Constitution in the Supreme Court: The First Hundred Years, 1789-1888
by David P. CurrieCurrie's masterful synthesis of legal analysis and narrative history, gives us a sophisticated and much-needed evaluation of the Supreme Court's first hundred years. "A thorough, systematic, and careful assessment. . . . As a reference work for constitutional teachers, it is a gold mine."—Charles A. Lofgren, Constitutional Commentary
Constitution-making and Human Rights in the Sudans (Routledge Research in Constitutional Law)
by Lutz Oette Mohamed Abdelsalam BabikerSudan and South Sudan have suffered from repeated cycles of conflict and authoritarianism resulting in serious human rights and humanitarian law violations. Several efforts, such as the 2005 Comprehensive Peace Agreement and transitional justice initiatives have recognized that the failure to develop a stable political and legal order is at the heart of Sudan’s governance problems. Following South Sudan’s independence in 2011, parallel constitutional review processes are under way that have prompted intense debates about core issues of Sudan’s identity, governance and rule of law, human rights protection and the relationship between religion and the State. This book provides an in-depth study of Sudan’s constitutional history and current debates with a view to identifying critical factors that would enable Sudan and South Sudan to overcome the apparent failure to agree on and implement a stable order conducive to sustainable peace and human rights protection. It examines relevant processes against the broader (constitutional) history of Sudan and identifies the building blocks for constitutional reforms through a detailed analysis of Sudanese law and politics. The book addresses constitutionalism and constitutional rights protection in their political, legal and institutional context in Sudan and South Sudan, and the repercussions of the relationship between state and religion for the right to freedom of religion, minority rights and women’s rights.
Constitution-making and Human Rights in the Sudans (Routledge Research in Constitutional Law)
Sudan and South Sudan have suffered from repeated cycles of conflict and authoritarianism resulting in serious human rights and humanitarian law violations. Several efforts, such as the 2005 Comprehensive Peace Agreement and transitional justice initiatives have recognized that the failure to develop a stable political and legal order is at the heart of Sudan’s governance problems. Following South Sudan’s independence in 2011, parallel constitutional review processes are under way that have prompted intense debates about core issues of Sudan’s identity, governance and rule of law, human rights protection and the relationship between religion and the State. This book provides an in-depth study of Sudan’s constitutional history and current debates with a view to identifying critical factors that would enable Sudan and South Sudan to overcome the apparent failure to agree on and implement a stable order conducive to sustainable peace and human rights protection. It examines relevant processes against the broader (constitutional) history of Sudan and identifies the building blocks for constitutional reforms through a detailed analysis of Sudanese law and politics. The book addresses constitutionalism and constitutional rights protection in their political, legal and institutional context in Sudan and South Sudan, and the repercussions of the relationship between state and religion for the right to freedom of religion, minority rights and women’s rights.
Constitution-Making under UN Auspices: Fostering Dependency in Sovereign Lands
by Vijayashri SripatiIn 1949, United Nations Constitutional Assistance (UNCA) was conceived to promote the Western liberal constitution. This was colonial trusteeship. However, in 1960, as a step towards decolonization, the United Nations General Assembly rejected internationalized constitution-making, and, by extension, UNCA. All colonies acquired the right to draft their own constitutions without any international assistance. Nonetheless, in the same year, UNCA was revived and since then it has helped over 40 developing sovereign states to adopt the Western liberal constitution, for the aims of building peace, preventing conflict, and promoting good governance in these independent states. This book scrutinizes UNCA and its off-shoot, UN/International Territorial Administration (ITA), including their historical origins and revival from 1960 to 2019. Sripati argues that although the United Nations (UN) uses UNCA to help developing sovereign states secure debt relief, it undertakes UNCA to ‘modernize’ them with a view to ‘strengthen’ their supposedly weakened sovereignty. By doing so, the UN is seeking these states’ adoption of a Western liberal-style constitution, thus violating their right to self-determination. The book shows how UNCA sires and guides UN (legislative) assistance in all state-sectors: security, judicial, electoral, commercial, parliamentary, public administration, and criminal. Irrespective of UNCA’s benevolent motivations, such intrusive interventions impose the old forms of domination and perpetuate global inequality.
The Constitution of Ancient China (The Princeton-China Series)
by Su Su Li Zhang Yongle Daniel A. Bell Edmund RydenHow was the vast ancient Chinese empire brought together and effectively ruled? What are the historical origins of the resilience of contemporary China's political system? In The Constitution of Ancient China, Su Li, China's most influential legal theorist, examines the ways in which a series of fundamental institutions, rather than a supreme legal code upholding the laws of the land, evolved and coalesced into an effective constitution.Arguing that a constitution is an institutional response to a set of issues particular to a specific society, Su Li demonstrates how China unified a vast territory, diverse cultures, and elites from different backgrounds into a whole. He delves into such areas as uniform weights and measurements, the standardization of Chinese characters, and the building of the Great Wall. The book includes commentaries by four leading Chinese scholars in law, philosophy, and intellectual history--Wang Hui, Liu Han, Wu Fei, and Zhao Xiaoli—who share Su Li's ambition to explain the resilience of ancient China's political system but who contend that he overstates functionalist dimensions while downplaying the symbolic. Exploring why China has endured as one political entity for over two thousand years, The Constitution of Ancient China will be essential reading for anyone interested in understanding the institutional legacy of the Chinese empire.
The Constitution of Ancient China (The Princeton-China Series)
by Su Su Li Zhang Yongle Daniel A. Bell Edmund RydenHow was the vast ancient Chinese empire brought together and effectively ruled? What are the historical origins of the resilience of contemporary China's political system? In The Constitution of Ancient China, Su Li, China's most influential legal theorist, examines the ways in which a series of fundamental institutions, rather than a supreme legal code upholding the laws of the land, evolved and coalesced into an effective constitution.Arguing that a constitution is an institutional response to a set of issues particular to a specific society, Su Li demonstrates how China unified a vast territory, diverse cultures, and elites from different backgrounds into a whole. He delves into such areas as uniform weights and measurements, the standardization of Chinese characters, and the building of the Great Wall. The book includes commentaries by four leading Chinese scholars in law, philosophy, and intellectual history--Wang Hui, Liu Han, Wu Fei, and Zhao Xiaoli—who share Su Li's ambition to explain the resilience of ancient China's political system but who contend that he overstates functionalist dimensions while downplaying the symbolic. Exploring why China has endured as one political entity for over two thousand years, The Constitution of Ancient China will be essential reading for anyone interested in understanding the institutional legacy of the Chinese empire.
The Constitution of Australia: A Contextual Analysis (Constitutional Systems of the World)
by Cheryl SaundersConsistently with the aims of the series, the book canvasses the Australian constitutional system in a way that explains its form and operation, provides a critical evaluation of it and conveys a sense of the contemporary national debate. The chapters deal with the foundations of Australian constitutionalism, its history from the time of European settlement, the nature of the Australian Constitutions, the framework for judicial review, the legislative, executive and judicial branches of government, federalism and multi-level government and rights protection. Running through all chapters is the story of the gradual evolution of Australian constitutionalism within the lean but almost unchanging framework of the formal, written, national Constitution. A second theme traces the way in which the present, distinctive, constitutional arrangements in Australia emerged from creative tension between the British and United States constitutional traditions on which the Australian Constitution originally drew and which continues to manifest itself in various ways. One of these, which is likely to be of particular interest, is Australian reliance on institutional arrangements for the purpose of the protection of rights. The book is written in a clear and accessible style for readers in both Australia and countries around the world. Each chapter is followed by additional references to enable particular issues to be pursued further by readers who seek to do so.'The Constitution of Australia' has already been cited in a High Court of Australia case: Momcilovic v The Queen [2011] HCA 34 (8 September 2011)
The Constitution of Bangladesh: People, Politics and Judicial Intervention
by Arafat Hosen KhanThe book provides a comprehensive introduction to the Constitution of Bangladesh. It traces the sociopolitical and legal context of its birth in the aftermath of a violent Independence War, through to the seventeen amendments to date as Bangladesh evolved through military coups and dictatorships, shifting alliances between religious and political parties, and the emergence of development state. Aimed at readers who are keen to understand the underpinnings of the constitutional system, its evolution, and the politics behind the scenes, the book will explore the impact of political bargains and extra-legal developments on the evolution of the Constitution instead of treating it as a standalone doctrine. By focusing on the overall sociopolitical context up until 2020, the book departs from the dominant tendency in legal scholarship to restrict attention to the development of the Constitution from its inception to the modern day. The volume will be of great interest to scholars and researchers of law, politics and South Asian studies.
The Constitution of Bangladesh: People, Politics and Judicial Intervention
by Arafat Hosen KhanThe book provides a comprehensive introduction to the Constitution of Bangladesh. It traces the sociopolitical and legal context of its birth in the aftermath of a violent Independence War, through to the seventeen amendments to date as Bangladesh evolved through military coups and dictatorships, shifting alliances between religious and political parties, and the emergence of development state. Aimed at readers who are keen to understand the underpinnings of the constitutional system, its evolution, and the politics behind the scenes, the book will explore the impact of political bargains and extra-legal developments on the evolution of the Constitution instead of treating it as a standalone doctrine. By focusing on the overall sociopolitical context up until 2020, the book departs from the dominant tendency in legal scholarship to restrict attention to the development of the Constitution from its inception to the modern day. The volume will be of great interest to scholars and researchers of law, politics and South Asian studies.
The Constitution of Belgium: A Contextual Analysis (Constitutional Systems of the World)
by Patricia Popelier Koen LemmensThe Belgian Constitution, once described as a model of consensus democracy, has now become an enigma in comparative federalism. On the one hand, it demonstrates features which suggest institutional instability as well as elements that enhance the probability of secession. On the other hand, Belgium continues to exist as a federal system, based upon linguistic bipolarity. This linguistic bipolarity dominates Belgian politics and has shaped the design of Belgium's institutions as well as the Constitution's fundamental organising principles: concepts of federalism, democracy, separation of powers, constitutionalism and the rule of law. In this book, the institutional structure and the principles governing the Belgian constitutional system are explained in the light of its historical, demographic and political context. Linguistic bipolarity and its historical evolution explain the establishment of the Belgian State structure as a dual federalism, with exclusive powers, instruments for consensus making and obstruction, and elements of confederal decision making. It also explains the evolution in the concept of principles of democracy and the rule of law. Besides describing the devolutionary process, the book also incorporates two other elements that have shaped the Belgian constitutional landscape: fundamental rights and Europeanisation.
The Constitution of Belgium: A Contextual Analysis (Constitutional Systems of the World)
by Patricia Popelier Koen LemmensThe Belgian Constitution, once described as a model of consensus democracy, has now become an enigma in comparative federalism. On the one hand, it demonstrates features which suggest institutional instability as well as elements that enhance the probability of secession. On the other hand, Belgium continues to exist as a federal system, based upon linguistic bipolarity. This linguistic bipolarity dominates Belgian politics and has shaped the design of Belgium's institutions as well as the Constitution's fundamental organising principles: concepts of federalism, democracy, separation of powers, constitutionalism and the rule of law. In this book, the institutional structure and the principles governing the Belgian constitutional system are explained in the light of its historical, demographic and political context. Linguistic bipolarity and its historical evolution explain the establishment of the Belgian State structure as a dual federalism, with exclusive powers, instruments for consensus making and obstruction, and elements of confederal decision making. It also explains the evolution in the concept of principles of democracy and the rule of law. Besides describing the devolutionary process, the book also incorporates two other elements that have shaped the Belgian constitutional landscape: fundamental rights and Europeanisation.
The Constitution of Brazil: A Contextual Analysis (Constitutional Systems of the World)
by Virgílio Afonso SilvaThis book offers an original and comprehensive analysis of Brazilian constitutional law and shows how the 1988 Constitution has been a cornerstone in Brazil's struggle to achieve institutional stability and promote the enforcement of fundamental rights. In the realm of rights, although much has been done to decrease the gap between constitutional text and constitutional practice, several types of inequalities still affect and sometimes impair the enforcement of the ambitious bill of rights laid down by the Brazilian Constitution. Within the organisation of powers, the book not only describes how its legislative, executive and judicial functions are organised, but above all else, it analyses how a politically fragmented National Congress, a powerful President and an activist Supreme Court engage with each other in ways that one could hardly grasp by reading the constitutional text without contextual analysis. Similarly, the book also shows how the three-tiered federation established in 1988 has undergone a process of centralisation led not only by the central government but also by the Brazilian Supreme Court. In addition to chapters on organisation of powers, fundamental rights, federalism, and the legislative process, the book also presents an overview of Brazilian constitutionalism with a special focus on the transition from authoritarianism to democracy, which led to the enactment of the 1988 Constitution. In the conclusion, the author argues that part of the Constitution's transformative potential remains to be realised. Enforcing the Constitution, not changing it, has been the real challenge in the last three decades and will continue to be for many years to come.
The Constitution of Brazil: A Contextual Analysis (Constitutional Systems of the World)
by Virgílio Afonso SilvaThis book offers an original and comprehensive analysis of Brazilian constitutional law and shows how the 1988 Constitution has been a cornerstone in Brazil's struggle to achieve institutional stability and promote the enforcement of fundamental rights. In the realm of rights, although much has been done to decrease the gap between constitutional text and constitutional practice, several types of inequalities still affect and sometimes impair the enforcement of the ambitious bill of rights laid down by the Brazilian Constitution. Within the organisation of powers, the book not only describes how its legislative, executive and judicial functions are organised, but above all else, it analyses how a politically fragmented National Congress, a powerful President and an activist Supreme Court engage with each other in ways that one could hardly grasp by reading the constitutional text without contextual analysis. Similarly, the book also shows how the three-tiered federation established in 1988 has undergone a process of centralisation led not only by the central government but also by the Brazilian Supreme Court. In addition to chapters on organisation of powers, fundamental rights, federalism, and the legislative process, the book also presents an overview of Brazilian constitutionalism with a special focus on the transition from authoritarianism to democracy, which led to the enactment of the 1988 Constitution. In the conclusion, the author argues that part of the Constitution's transformative potential remains to be realised. Enforcing the Constitution, not changing it, has been the real challenge in the last three decades and will continue to be for many years to come.
The Constitution of Canada: A Contextual Analysis (Constitutional Systems of the World)
by Jeremy WebberThe book introduces and describes the principal characteristics of the Canadian constitution, including Canada's institutional structure and the principal drivers of Canadian constitutional development. The constitution is set in its historical context, noting especially the complex interaction of national and regional societies that continues to shape the constitution of Canada. The book argues that aspects of the constitution are best understood in 'agonistic' terms, as the product of a continuing encounter or negotiation, with each of the contending interpretations rooted in significantly different visions of the relationship among peoples and societies in Canada. It suggests how these agonistic relationships have, in complex ways, found expression in distinctive doctrines of Canadian constitutional law and how these doctrines represent approaches to constitutional legality that may be more widely applicable. As such, the book charts the Canadian expression of trans-societal constitutional themes: democracy; parliamentarism; the rule of law; federalism; human rights; and Indigenous rights, and describes the country that has resulted from the interplay of these themes.'The Constitution of Canada is a masterpiece – an outstanding and original study of the Canadian constitutional experience by one of Canada's leading legal scholars. Webber explains the history, characteristics and resourcefulness of the living constitution in non-technical and illuminating language. He also shows how the constitution is shaped by the engagement and interaction of the diverse people of Canada, who are simultaneously subjects and active citizens of it – a dynamic he calls “agonistic constitutionalism”.' James Tully, Distinguished Professor, University of Victoria'Jeremy Webber has given us a rich, contextual account of Canada's constitution. Webber moves beyond the confines of constitutional texts and judicial decisions and grounds his account in the circumstances of the country's history. Only such an account can capture the deep diversity that is the hallmark of Canada's constitutional culture.' Peter Russell, Professor Emeritus, University of Toronto
The Constitution of Canada: A Contextual Analysis (Constitutional Systems of the World)
by Jeremy WebberThe first edition of this text quickly established itself as the classic introduction to the Canadian constitution. Setting it in its historical context, noting especially the complex interaction of national and regional societies, it shows how the constitution continues to morph and shape itself. These changes are explored through key constitutional themes: democracy; parliamentarism; the rule of law; federalism; human rights; and Indigenous rights, and describes the country that has resulted from the interplay of these themes.Clarity of expression and explanation, which never veers into simplicity, combined with the author's expertise, makes this the ideal starting point for the student or comparative lawyer keen to gain a strong understanding of how Canadian democracy and government works.