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1
R, Tajik S. S. Konstitutsii︠a︡i (qonuni asosii) Respublikai Sovetii Sot︠s︡ialistii Tojikiston: Bo taghʺirotu, ki bo Qonunḣoi RSS Tojikiston az 19 noi︠a︡bri soli 1988, 22 ii︠u︡li soli 1989, 23 senti︠a︡bri soli 1989 va 24 noi︠a︡bri soli 1989 dokhil karda shudaand. Dushanbe: "Irfon", 1989.
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Ooyen, Robert Christian van, 1960-, ed. Wer soll Hüter der Verfassung sein?: Abhandlungen zur Theorie der Verfassungsgerichtsbarkeit in der pluralistischen, parlamentarischen Demokratie. Tübingen: Mohr Siebeck, 2008.
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Beuningen, Cor, and Kees Buitendijk, eds. Finance and the Common Good. NL Amsterdam: Amsterdam University Press, 2019. http://dx.doi.org/10.5117/9789463727914.
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Over the past fifty years, (financial) capitalism has brought about an enormous growth in wealth. Millions around the world have been lifted out of poverty. However, the downsides of the present global economic constitution are rapidly becoming evident as well. Rising inequality, soaring debt levels, and repeated cycles of boom and bust have proven to be some of its key characteristics. After the 2008 crisis brought the financial system to the brink of collapse, new regulations, stricter supervision, higher capital requirements, and ethical codes were introduced to the sector. Today we find ourselves in the middle of another economic boom. Yet one pressing question remains: has anything changed? Have the (necessary) repairs fixed the flaws in the system? Or do we require even more fundamental reforms? This volume builds on the observation that society has co-evolved with the financial sector. We cannot simply claim that 'finance' was the sole instigator of the 2008 crisis. Society itself has become financialized; the process of replacing relations, structures of trust and reciprocity, by anonymous and systemic transactions. The volume poses vital questions with regard to this societal development. How did this happen? And more importantly: is change possible? If yes, how? This volume contains 21 essays on the themes mentioned above. Authors include Jan Peter Balkenende, Wouter Bos, Lans Bovenberg, Govert Buijs, and Herman Van Rompuy. A recommendation by Dutch Minister of Finance Wopke Hoekstra is also included.
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Zolotas, Triantafyllos. Gerichtliche Heranziehung der Grundrechtsvergleichung: Eine kontextorientierte Untersuchung der Frage, in welchen Fällen auf die Erfahrung ausländischer Rechtsordnungen rekurriert werden soll. Köln: Carl Heymanns, 2012.
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Grabowski, Andre. German Trade Tax and Constitution: Constitutional Problems Arising from the Differing Treatment of Mixed Activities of Partnerships and Sole Proprietorships. Lang GmbH, Internationaler Verlag der Wissenschaften, Peter, 2007.
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Colón-Ríos, Joel. Constituent Power and the Law. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198785989.001.0001.
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This book examines the place of the concept of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. It shows that constituent power, even though having historically been associated with extra-legality and violations of the constitutional order, has played important functions in the making of determinations of legal validity. Constitutional courts have employed it to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have recurred to it to defend the legality of the transformation of the constitutional order through procedures not contemplated in the constitution’s amendment rule but considered participatory enough to be seen as equivalent to ‘the people in action’, and these attempts have sometimes been sanctioned by courts. Commentators and citizens have relied on the theory of constituent power to defend the idea that electors have the right to instruct representatives, and that the creation of new constitutions must take place through extra-legislative entities, such as primary assemblies open to all citizens. Several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Building on these findings, the book ultimately develops a distinction between sovereignty and constituent power and argues that even a constitution-making body can be made legally subject to the conditions arising from a constituent referendum.
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Huemer, Michael. Can Constitutions Limit Government? Edited by David Schmidtz and Carmen E. Pavel. Oxford University Press, 2016. http://dx.doi.org/10.1093/oxfordhb/9780199989423.013.12.
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There are systematic reasons why the U.S. constitution has failed to limit the power of the federal government in the way that it was intended to do. After examining which kinds of constitutional provisions have been respected and which have not, we can devise alternative constitutional provisions that would have a greater chance of successfully limiting the power of government. In particular, (i) there should be supermajority rule for passage of all legislation, (ii) there should be a separate, “negative legislature” with the sole power of repealing laws, and (iii) there should be a separate “constitutional court” with stronger powers for enforcing the constitution than the current Supreme Court.
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Charles M, Fombad. Part I Overview, 1 The Evolution of Modern African Constitutions: A Retrospective Perspective. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198759799.003.0002.
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This chapter presents a historical overview of constitutional developments in Africa. One of the most remarkable developments has been the move away from wholly imported or imposed constitutions, towards constitutions made within Africa. Two constitutional traditions have substantially influenced current constitutional developments on the continent. One is the common law constitutional tradition, based on the Westminster constitutional system with many elements of the US constitutional system crafted onto it, which has been widely adopted in Anglophone Africa. The other is the civil law constitutional tradition mainly based on the French Fifth Republic Constitution of 1958, which has been widely adopted in Francophone Africa and to some extent, Lusophone and Hispanophone Africa.
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Ginsburg, Tom. The Design of Constitutions. Edited by Francesco Parisi. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780199684250.013.010.
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Constitutions have been a central topic for the economic analysis of law since Buchanan and Tullock (1961) introduced the discipline of constitutional political economy. From the outset economic analysis has been deployed for both positive and normative ends. Their project was normative, but economic analysis provides tools to critique real world constitutions and to analyze their attributes. Optimal design of constitutions in theory is rarely matched in practice, but this is no hindrance to understanding the form, duration, and impact of actual constitutions. This chapter reviews the ends of constitutional design. It offers a positive theory of constitutional bargaining which can be used to inform normative design questions. Whether particular institutions ought to be included in a constitution depends on the extent to which such texts make a difference, which is an empirical question subject to some scrutiny. A review of the empirical literature on constitutional design concludes.
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Cheryl, Saunders, and Stone Adrienne, eds. The Oxford Handbook of the Australian Constitution. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198738435.001.0001.
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The Oxford Handbook of the Australian Constitution offers a critical analysis of some of the most significant aspects of Australian constitutional arrangements, setting them against the historical, legal, political, and social contexts in which Australia's constitutional system has developed. It takes care to highlight the distinctive features of the Australian constitutional system by placing the Australian system, where possible, in a global perspective. Constitutional law provides the legal framework for the Australian political and legal systems, and thus touches almost every aspect of Australian life. The chapters are arranged in seven thematically grouped parts. The first, ‘Foundations’, deals with aspects of Australian history which have influenced constitutional arrangements. The second, ‘Constitutional Domain’, addresses the interaction between the Constitution and other relevant legal systems and orders, including the common law, international law, and State Constitutions. The third, ‘Themes’, identifies themes of special constitutional significance, including the legitimacy of the Constitution, citizenship, and republicanism. The fourth, ‘Practice and Process’, deals with practical issues relevant to constitutional litigation, including the processes, techniques, and authority of the High Court of Australia. The final three parts deal with the structural building blocks of the Australian constitutional system: ‘Separation of Powers’, ‘Federalism’, and ‘Rights’.
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Robert F, Williams. Part IV Unique Interpretation Issues in State Constitutional Law, 12 Interpreting State Constitutions. Oxford University Press, 2009. http://dx.doi.org/10.1093/acprof:oso/9780195343083.003.0012.
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This chapter discusses a wide variety of judicial interpretation techniques that state courts apply to state constitutions. Many of these techniques arise from the unique characteristics of state constitutions, including their origin, function, form, and quality, all of which are different from the federal Constitution. The chapter analyzes many of these differing approaches, including the question whether a state constitutional provision is self-executing; possible negative implications arising from grants of authority to the state legislature; interpretation based on the “voice of the people,” arising from the fact that state constitutional provisions are ratified by the electorate; the much wider availability of state constitutional history materials, some of it quite recent; and the possibility of a different view of the doctrine of precedent concerning judicial interpretations of state constitutions. The chapter discusses canons, maxims, and other approaches to state constitutional interpretation, such as contemporaneous construction.
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Robert F, Williams. Part III Structure of State Government, 11 The State Executive Branch. Oxford University Press, 2009. http://dx.doi.org/10.1093/acprof:oso/9780195343083.003.0011.
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This chapter discusses the differences between the state executive branch created by state constitutions and the federal executive. In many states there is a plural or fragmented executive, with more than one state-wide elected official in addition to the governor, such as the attorney general, treasurer, commissioner of education, etc. Such additional executive officers perform constitutional functions separate and apart from the governor's constitutional functions. State executive officials such as the governor do not exercise plenary authority like that of the legislature. Rather, their authority is delegated either in the state constitution or by statute. A governor's use of executive orders is therefore limited to implementing constitutional or statutory powers. The chapter discusses the variety of gubernatorial veto powers, together with the judicial involvement in controversies over the exercise of this power. This judicial involvement is particularly important with respect to the item veto power. Further, some state constitutions create executive agencies, and specify their powers (often including quasi-executive, quasi-legislative, and quasi-judicial powers), thereby divesting the state legislature of authority in those subject areas.
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Robert F, Williams. Part II Rights Guarantees under State Constitutions: the New Judicial Federalism, 6 Methodology in State Constitutional Rights Interpretation. Oxford University Press, 2009. http://dx.doi.org/10.1093/acprof:oso/9780195343083.003.0006.
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This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.
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Shaw, Jo. The People in Question. Policy Press, 2020. http://dx.doi.org/10.1332/policypress/9781529208894.001.0001.
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The book explores tensions in the relationship between citizenship and constitutions. It starts from the proposition that the citizen is a central figure in most if not all constitutional set-ups at the state level, and then highlights the paradox that in many constitutions matters of citizenship are not regulated in detail. The idea of the ‘constitutional citizen’ is developed and explored in Part Two, across chapters looking at the ideal of citizenship, modes of acquisition and loss of citizenship, and citizenship rights. Two themes emerge in those central chapters: the potential role of superordinate constitutional principles such as equality and dignity in filling out the concept of constitutional citizenship and the question as to how states should determine the boundaries of citizenship. Should it be via the constitution as interpreted by courts, or via the legislature as representing the people? Part Three of the book explores some of the challenges which the idea of constitutional citizenship faces today. It looks at the effects of the rise of populist politics in many countries, including the acceleration in some countries of constitutional amendments to mirror an exclusivist concept of the people. Then it turns to the fragmentation of the governance of citizenship. Here we see a turn away from an exclusive focus on the state and an increased impact of international institutions on citizenship. An exploration of the paradox of the simultaneous rise of populism and globalisation forms the centrepiece of the book’s conclusions.
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Mayer, Franz C. Defiance by a Constitutional Court—Germany. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198746560.003.0024.
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This chapter considers the highly problematic issue of defiance by a court. Notably, the chapter focuses on defiance by national courts in the context of European integration—a phenomenon which has occurred with some frequency. Still more specifically, this chapter turns to the German Constitutional Court’s approach to European integration. Though the 1949 German Constitution (the Grundgesetz) appears to be more open for European and international cooperation than most other constitutions on the continent, it too seems to be edging toward defiance. As a first step it is thus necessary to take a closer look at the broader picture of the German constitutional landscape, in particular at the German Constitutional Court and its decisions on European integration. Based on that broader account of cases, the chapter then assesses the degree and motivations of defiance and to reflect on possible future developments.
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Robert F, Williams. Part V State Constitutional Amendment and Revision, 14 Judicial Involvement in State Constitutional Amendment and Revision. Oxford University Press, 2009. http://dx.doi.org/10.1093/acprof:oso/9780195343083.003.0014.
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This chapter discusses the extensive judicial involvement in litigation considering the substance and procedure of state constitutional amendment and revision. Some processes of state constitutional change can only be utilized, for example, to amend the state constitution but not to revise it. This is generally true for the initiative. Litigation therefore arises over whether an initiated change is a valid amendment or an invalid revision. Also, state constitutions contain a number of procedural requirements and limitations on the processes for their change, such as single-subject and separate-vote requirements. These procedural restrictions are enforced by the courts through litigation. This level of judicial involvement in the processes of state constitutional change is unlike that at the federal level, for change does not occur very often and challenges to the federal processes of change are generally viewed as non-justiciable political questions.
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Collins, Richard, and Dale Oesterle. The Colorado State Constitution. 2nd ed. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780190907723.001.0001.
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The Colorado State Constitution (2020) is the second edition of the state’s contribution to The Oxford Commentaries on the State Constitutions of the United States. The book opens with a detailed history of the constitution that focuses on events and amendments that transformed the state. As expected in the West, it features some lively adventure stories. Since the first edition in 2002, the state’s population has grown by more than a third. The book explains the many new challenges its legal system has faced. The main section analyzes in detail every provision of the constitutional text. All relevant judicial interpretations are examined. A comprehensive index and a table of cases guide researchers. Interaction with the federal Constitution is carefully explained. Background and interpretations of Colorado’s complex and unique tax revolt, known as TABOR, are carefully analyzed. The state’s extensive provisions for direct democracy, the initiative, veto referendum, and recall of elected officials, are studied in detail. The Colorado Bill of Rights is fully reviewed. The state’s strong system for constitutional home rule for cities, counties, and towns is examined from its adoption into today’s governing system. The state’s strong system for all levels of public education is explained. Its leadership in the marijuana legalization movement is another subject well covered.
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Peter, Oliver, Macklem Patrick, and Des Rosiers Nathalie, eds. The Oxford Handbook of the Canadian Constitution. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780190664817.001.0001.
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The Oxford Handbook of the Canadian Constitution provides an ideal first stop for Canadians and non-Canadians seeking a clear, concise, and authoritative account of Canadian constitutional law. The Handbook is divided into six Parts: Constitutional History, Institutions and Constitutional Change, Indigenous Peoples and the Canadian Constitution, Federalism, Rights and Freedoms, and Constitutional Theory. Readers of this Handbook will discover some of the distinctive features of the Canadian Constitution: for example, the importance of Indigenous peoples and legal systems, the long-standing presence of a French-speaking population, French civil law and Quebec, the British constitutional heritage, and the choice of federalism, as well as the newer features, most notably the Canadian Charter of Rights and Freedoms, section 35 regarding Aboriginal rights and treaties, and the procedures for constitutional amendment. The Handbook provides a remarkable resource for comparativists at a time when the Canadian Constitution is a frequent topic of constitutional commentary. For Canadians, the Handbook offers a vital account of constitutional challenges and opportunities at the time of the 150th anniversary of Confederation.
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Manuel José Cepeda, Espinosa, and Landau David. Part Four Constitutional Change, 11 Constitutional Amendment and the Substitution of the Constitution Doctrine. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780190640361.003.0011.
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The 1991 Constitution sets up a relatively flexible system of constitutional change, which can be activated through several different routes. The Constitution has thus been frequently amended since its enactment. The Colombian Constitutional Court has been aggressive in policing the tools of constitutional change. It has been meticulous in ensuring that amendments follow the proper congressional procedures, and in the case of amendments via referendum it has ensured that questions are sufficiently clear and do not bias voters toward certain answers. Most significantly, the Court had developed a substitution of the constitution doctrine, where it has struck down some constitutional amendments on the ground that they replaced core provisions of the existing constitution, rather than merely changing them. This doctrine was most famously used in a case striking down a constitutional amendment that would have allowed the popular president Alvaro Uribe to run for a third straight term.
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Sujit, Choudhry, Khosla Madhav, and Mehta Pratap Bhanu, eds. The Oxford Handbook of the Indian Constitution. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.001.0001.
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This book explores the historical commitment to the idea of constitutionalism and how the framers understood India’s constitutional project. It begins with an overview of the concept of ‘constitutional morality’ as it relates to the Indian Constitution, along with the cosmopolitan character of Indian constitutionalism. It then considers some of the tensions that have characterised constitutional law in India, with particular emphasis on some of the sources of these tensions, for instance the debate between centralisation and decentralisation. It also discusses the major axes around which the normative and institutional imagination of the Indian Constitution is articulated and concludes by analysing the character of constitutional development in India and paying attention to the forces that have shaped its evolution.
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Sujit, Choudhry, Khosla Madhav, and Mehta Pratap Bhanu. Ch.1 Locating Indian Constitutionalism. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.003.0001.
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This chapter explores the historical commitment to the idea of constitutionalism and how the framers understood India’s constitutional project. It begins with an overview of the concept of ‘constitutional morality’ as it relates to the Indian Constitution, along with the cosmopolitan character of Indian constitutionalism. It then considers some of the tensions that have characterised constitutional law in India, with particular emphasis on some of the sources of these tensions, for instance the debate between centralisation and decentralisation. It also discusses the major axes around which the normative and institutional imagination of the Indian Constitution is articulated and concludes by analysing the character of constitutional development in India and paying attention to the forces that have shaped its evolution.
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Robert F, Williams. Part I State Constitutions in American Constitutional Federalism, 4 Federal Limits on State Constitutions. Oxford University Press, 2009. http://dx.doi.org/10.1093/acprof:oso/9780195343083.003.0004.
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This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions can violate not only the federal Constitution itself, but also federal statutory law, administrative regulations, federal common law, and even treaties and interstate compacts. In addition, enabling acts passed by Congress to facilitate the admission of new states can have continuing, limiting effect on states' constitutions to the extent that such federal provisions are based on ongoing congressional power (not just the power to admit new states). In some contexts federal law can preempt the provisions of state constitutions. All of these ways in which federal law limits the content of state constitutions are enforceable by the courts.
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Hanna, Lerner. Part I History, Ch.4 The Indian Founding: a comparative perspective. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.003.0004.
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This chapter examines the making of the Indian Constitution from a comparative perspective, with particular emphasis on some of the significant and innovative aspects of the drafting process. After discussing constitution drafting in the post-colonial/post-World War II period, it considers the debate in the Indian Constituent Assembly over what it means to be an Indian and how the Constitution should facilitate political unity in the face of immense cultural, religious, and national diversity. It then explores some of the innovative constitutional strategies developed by the Indian framers to reconcile the deep disagreements among the Indian public regarding the religious, national, and linguistic identity of the State with the principles of democracy. These strategies include constitutional incrementalism, the deferral of controversial decisions, ambiguity, and non-justiciability.
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Dignam, Alan, and John Lowry. 1. Introduction to company law. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198811831.003.0001.
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Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter presents an overview of company law, first by considering the company’s place within the various forms of business organisation. To get some comparative perspective on the relative merits of each type of organisation, three criteria for judging them are discussed: whether the form of business organisation facilitates investment in the business, mitigates or minimises the risk involved in the business venture, and whether it provides a clear organisational structure. Using these criteria, three forms of business organisation are analysed: the sole trader, a partnership, or a registered company. The chapter also explains the importance of the memorandum as part of the company’s constitution, as well as the distinction between private companies and public companies. Finally, it outlines the benefits of forming a company as opposed to the sole trader or a partnership.
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Dignam, Alan, and John Lowry. 1. Introduction to company law. Oxford University Press, 2016. http://dx.doi.org/10.1093/he/9780198753285.003.0014.
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Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter presents an overview of company law, first by considering the company’s place within the various forms of business organisation. To get some comparative perspective on the relative merits of each type of organisation, three criteria for judging them are discussed: whether the form of business organisation facilitates investment in the business, mitigates or minimises the risk involved in the business venture, and whether it provides a clear organisational structure. Using these criteria, three forms of business organisation are analysed: the sole trader, a partnership, or a registered company. The chapter also explains the importance of the memorandum as part of the company’s constitution, as well as the distinction between private companies and public companies. Finally, it outlines the benefits of forming a company as opposed to the sole trader or a partnership.
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Broadwater, Jeff. Jefferson, Madison, and the Making of the Constitution. University of North Carolina Press, 2019. http://dx.doi.org/10.5149/northcarolina/9781469651019.001.0001.
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Thomas Jefferson, the author of the Declaration of Independence, and James Madison, “Father of the Constitution,” were two of the most important Founders of the United States as well as the closest of political allies. Yet historians have often seen a tension between the idealistic rhetoric of the Declaration and the more pedestrian language of the Constitution. Moreover, to some, the adoption of the Constitution represented a repudiation of the democractic values of the Revolution. In this book, Jeff Broadwater explores the evolution of the constitutional thought of these two seminal American figures, from the beginning of the American Revolution through the adoption of the Bill of Rights. In explaining how the two political compatriots could have produced such seemingly dissimilar documents but then come to a common constitutional ground, Broadwater reveals how their collaboration ---and their disagreements---influenced the full range of constitutional questions during this early period of the American republic.
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Wood, Gordon S. Power and Liberty. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780197546918.001.0001.
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This book covers major issues of constitutionalism in the American Revolution. It begins with the imperial debate over taxation and representation between the colonists and the British government. That debated climaxed with the Declaration of Independence. Each of the former colonies became republics and drew up written constitutions with several of them including bills of rights. These constitutions established patterns that later influenced the federal Constitution created in 1787, including bicameral legislatures, independent executives, and independent judiciaries. But because the Confederation of the states lacked the power to tax and regulate trade and the state legislatures were abusing their considerable power, the revolutionaries sought to solve both problems with a new federal Constitution in 1787. In addition to having to recognize the equality of each state in the Senate, the Convention faced the problem with slavery. Although most Americans thought that slavery was gradually dying, South Carolina and Georgia wanted to import more slaves and forced the Convention to guarantee twenty more years of slave importations and some protections for slavery in the Constitution. The institution that benefited most from the Revolution was the judiciary. It became very important in monitoring the demarcation between the public and the private realms that emerged from the Revolution.
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Chilton, Adam, and Mila Versteeg. How Constitutional Rights Matter. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780190871451.001.0001.
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How Constitutional Rights Matter explores whether constitutionalizing rights improves respect for those rights in practice. Drawing on global statistical analyses, case studies in Colombia, Myanmar, Poland, Russia, and Tunisia, and survey experiments in Turkey and the United States, this book advances three claims. First, enshrining rights in constitutions does not automatically ensure that those rights will be respected in practice. For rights to matter, rights violations need to be politically costly, which can happen when citizens mobilize against governments that encroach upon their rights. Successfully resisting the government, however, is no small feat for unconnected groups of citizens, and governments can often get away with constitutional rights violations. Second, some rights are more likely to be enforced than others. The reason is that some rights come with natural constituencies that are able to mobilize for their enforcement. This is the case for rights that are practiced by and within organizations, or “organizational rights,” such as the rights to religious freedom, unionize, and form political parties. Because religious groups, trade unions, and political parties are highly organized, they are well equipped to use the constitution to resist rights violations. Indeed, we find that these organizational rights are systematically associated with better practices. By contrast, rights that are practiced on an individual basis, such as free speech or the prohibition of torture, usually lack constituencies to enforce them, which makes it easier for governments to violate them. Third, even highly organized groups armed with the constitution face an uphill battle. Although such groups may be able to successfully resist repressive practices, they often can only delay governments that are truly dedicated to rights repression.
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Zaid, Al-Ali. Part 5 Emerging Constitutions in Islamic Countries, 5.8 Constitutional Legitimacy in Iraq: What Role Local Context? Oxford University Press, 2012. http://dx.doi.org/10.1093/acprof:osobl/9780199759880.003.0034.
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This chapter explores how it can be that, despite the attention of international institutions and experts in a particular constitutional process, and despite the application of international norms relating to democratic processes and fundamental rights, a constitutional process can give rise to a text that is incapable of achieving acceptance within the relevant country's borders. It argues that local context is the most important factor that should be considered if a constitution is to have any chance of acquiring some form of internal legitimacy in the future. The chapter begins by defining constitutional legitimacy and by arguing that although the 2006 Constitution has been endorsed by the international community, it was essentially dead on arrival in Iraq. It presents two case studies, to explain how this situation was brought about. The first shows how the drafters' lack of understanding of Iraq's institutional context led to the collapse of its system of parliamentary oversight under the 2006 Constitution, while the second shows how the constitutional drafters (and the internationals who advised and guided the constitutional process) had misjudged the relative popularity of the parties that were allowed to control the drafting process and that dictated the final text's content. Finally, the chapter attempts define the meaning of “local context” and identify its different components, particularly with a view to encouraging greater attention and understanding of local considerations and interests by all parties involved in a constitutional process in the future.
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Ramin S, Moschtaghi. Part 5 Emerging Constitutions in Islamic Countries, 5.10 Constitutionalism in an Islamic Republic: The Principles of the Afghan Constitution and the Conflicts between Them. Oxford University Press, 2012. http://dx.doi.org/10.1093/acprof:osobl/9780199759880.003.0036.
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This chapter analyzes the tensions between Islam and the principles of the Afghan Constitution. It first identifies the different principles of the Afghan Constitution and then examines points of conflict between them. Based on an assessment of a specific conflict between Islamic law and human rights concerning the treatment of apostates in Islam and the freedom of religion, it proposes a practical approach how to solve conflicts between different Afghan constitutional principles and values.
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Crocker, Thomas P. Overcoming Necessity. Yale University Press, 2020. http://dx.doi.org/10.12987/yale/9780300181616.001.0001.
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Using emergency as a cause for action ultimately leads to an almost unnoticed evolution in the political understanding of presidential powers. The Constitution of the United States, however, was designed to function under “states of exception,” most notably through the separation of powers, and provides ample internal checks on emergency actions taken under claims of necessity. This book urges the United States Congress, the courts, and other bodies to put those checks into practice. The book analyzes the constitutional norms that fail to guide and constrain the choice of action through an analysis of what is appropriate. It explores how constitutional norms always apply as unavoidably normative constitutional questions during an emergency. It explains how necessity can produce dictatorship, because the people are willing to allow whatever it takes to solve their immediate needs, and it looks into the theory that a president might suspend the constitutional order in order to post hoc political accountability. It then talks about necessity that enables presidential discretion, and responds to arguments regarding the president having all the power that necessity confers. The book considers the scope of implied presidential power, arguing that even if there is power to do what is necessary, it is still constrained by conceptions of what is proper. It emphasizes how deference to the president is inconsistent with a constitutional tradition that preciously guards decisions about liberty. The book concludes with a review of the commitment to constitutional values as a constitutive feature of political identity in American constitutionalism.
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HP, Lee. 9 Conclusion. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755999.003.0010.
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This concluding chapter presents some reflections about the trajectory of constitutional development in Malaysia. The Malaysian Constitution was conceived with a clear aim of dividing powers among the political entities of executive, legislature, judiciary, and the Malay Rulers. However, in contemporary Malaysia now, there is increasing unease over the unconstrained expansion of executive power, as well as strong distrust in the unbridled exercise of powers in the name of protecting public order and security. The Malaysian nation’s ability to traverse the path of harmony and national advancement in a shrinking world will depend on the fidelity of its political leaders and its many peoples to the constitutional understandings embodied in the Merdeka Constitution, the constitutional principles of fairness, justice, and equality, as well as a common subscription to the fundamental importance of upholding the rule of law.
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Raeesa, Vakil. Part IV Separation of Powers, Ch.21 Jurisdiction. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.003.0021.
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This chapter explores how the jurisdiction of the Indian Supreme Court has evolved as an appellate court, a constitutional court, and a ‘final’ court. It begins by reviewing the four kinds of appeal that may be heard by the Supreme Court as specified in the Indian Constitution: civil, criminal, questions of constitutional interpretation, and appeals by special leave of the Court. It then considers the uncertainty and expansion in the Supreme Court’s appellate jurisdiction, with particular emphasis on the imbalance in jurisdictional reforms, the absence of guidelines for the exercise of discretion, and inconsistency in implementing constitutional provisions. It also discusses the Court’s advisory jurisdiction, adjudication of federal disputes, and jurisdiction to interpret the Constitution, along with its power to enforce justice and its claim to inherent powers. The chapter concludes by outlining some of the challenges faced by the Court today.
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Ran, Hirschl. 2 Early Engagements with the Constitutive Laws of Others: Lessons from Pre-Modern Religion Law. Oxford University Press, 2014. http://dx.doi.org/10.1093/acprof:oso/9780198714514.003.0003.
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Many purportedly new debates in comparative constitutional law have early equivalents, some dating back over two millennia. The chapter examines pre-modern religion law and the birth of two concepts cardinal for understanding the philosophy of comparative constitutional studies of law and religion: acknowledgment of the legitimacy and integrity of the constitutive laws of others; and doctrinal innovation from a necessity-based or ideologically driven impulse to respond to or incorporate such laws. Pre-modern canon law and Jewish law suggest that engagement with the constitutive laws of others is much longer and thicker than the current convergence trend. Some of the concepts developed in religion-laden contexts in times long gone continue to be relevant for understanding contemporary constitutional reaction to external convergence pressures. Further examples illustrate that alongside inquisitiveness per se, instrumentalist factors matter greatly in explaining purportedly principled, doctrinal debates over openness toward, or rejection of, the constitutive laws of others.
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Schupmann, Benjamin A. The Absolute Constitution. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198791614.003.0005.
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Chapter 4 analyzes Schmitt’s constitutional theory and how it complements his state theory. It begins with Schmitt’s criticism of the predominant positivist conception of the constitution. Schmitt argued that the positivists’ “relativized” conception of the constitution was committed above all to the equal chance of any belief to be enacted into law. This chapter then analyzes Schmitt’s counterargument that, without a prior and “absolute” commitment to some substantive value, a constitution could not fulfill its basic purpose of providing a clearly defined and stable public order. Schmitt’s typology of Relative and Absolute Constitution maps onto his state theoretical distinction between mechanical state and absolute state. This chapter concludes by discussing Schmitt’s later analysis of the concept nomos and how his analysis builds on and develops his earlier work on the concept of the absolute constitution.
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Vinay, Sitapati. Part VII Rights—Substance and Content, Ch.40 Reservations. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.003.0040.
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This chapter explores the constitutional provisions, cases, legislation, and parliamentary debates on reservations in India. It begins with a discussion of three main beneficiary groups of reservation policy recognised by the Indian Constitution: Scheduled Castes (SCs), Scheduled Tribes (STs), and a third group called ‘Other’ Backward Classes (OBCs). In particular, it considers the legal construction of these categories and some other beneficiary groups recognised in the Constitution, such as women, Muslims, and other religious groups. It also highlights the confusion about the social location of OBCs and focuses on four constitutional nuances regarding OBCs. Finally, it examines the extension of reservations in public education, public employment, private sector, and Central and State legislatures; how reservations work in practice; and the politics that surrounds them.
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Mark, Tushnet. Epilogue, Ch.56 The Indian Constitution Seen from Outside. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.003.0056.
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This chapter considers some aspects of the Indian Constitution and its judicial interpretation, as seen from abroad. To this end, it discusses a number of topics that compare India’s constitutional experience with those of other countries, beginning with unconstitutional constitutional amendments and the ‘Basic Structure’ doctrine. It then explores public interest litigation, affirmative action and reservations, and finally the mechanisms by which judicial independence has been secured in India. It also comments on the contentious relationship between constitutional courts and political elites in other institutions. The chapter concludes by noting how constitutional developments, including the growth of constitutional doctrine, are intertwined with a nation’s overall political system, especially the party system in place.
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Rainer, Grote. Part 3 Institutional Control of Constitutionalism, 3.1 Models of Institutional Control: The Experience of Islamic Countries. Oxford University Press, 2012. http://dx.doi.org/10.1093/acprof:osobl/9780199759880.003.0013.
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This chapter discusses constitutional review in Islamic countries. It covers the basic models of constitutional review; composition of constitutional courts; powers of constitutional courts; and effects of constitutional court decisions. It shows that introduction of constitutional review in the Islamic world has largely been pattered after foreign models, particularly of France (namely in the Maghreb countries and Lebanon), the United States (in Egypt and the Arab peninsula), the United Kingdom (Pakistan, Nigeria, Malaysia), and Germany (Turkey, Indonesia), with modifications to the particular political and cultural contexts of the respective countries. While almost all constitutional review bodies practice some form of constitutional review of legislation or another, most constitutions in the Islamic world still do not provide for access of individuals to constitutional adjudication.
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Corrales, Javier. Introduction. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190868895.003.0001.
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This chapter introduces the book’s two central puzzles: what explains Latin America’s obsession with fixing democracy via constituent assemblies, and what explains variations in outcomes of constituent assemblies? It introduces the key argument: power asymmetries between Incumbents and Opposition forces—in the form of variations in the relative strength of the Incumbent vis-à-vis the Opposition, more so than other factors such as economics, ideology, or partisanship—lead to constitutions that offer weaker checks and balances. Power asymmetries, the book argues, influence to some extent the incidence of constitutional change and to a large extent the content of resulting constitutions. The book illustrates these points by examining twenty-four constitutional moments in Latin America since the 1980s, including eleven drafted new constitutions and thirteen aborted constituent assemblies. Finally, this chapter offers a justification for the book’s case selection and explains the research design pursued therein.
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TV, Somanathan. Part IV Separation of Powers, Ch.22 The Administrative and Regulatory State. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.003.0022.
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This chapter explores how India’s constitutional law has addressed the administrative and regulatory State as it has evolved outside the traditional branches of government, and how judicial review is exercised over it. It begins by providing a background on constitutional issues relating to the administrative State as it functions within the executive branch, before turning to a discussion of the major regulatory bodies that either are explicitly called ‘regulatory’ or exercise regulatory functions. It then considers the constitutional position of the administrative and regulatory State based on judicial decisions and on the Indian Constitution. It also examines the conceptual underpinnings of, and justification for, the regulatory State, along with some specific concerns arising from the regulatory State such as legal uncertainty and excessive delegation. The chapter concludes by analysing some of the issues associated with the emerging constitutional jurisprudence on the regulatory State.
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Jones, Emily. Constitutional Politics, c.1830–1880. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198799429.003.0002.
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Chapters 2 and 3 address some of the fundamental problems that haunted Burke’s legacy after his death, when he was seen predominantly as a dissentient Whig, who had devastated his party and ensured their absence from office for forty years. Chapter 2 addresses Burke’s position within the English (or British) constitutional tradition central to defining British political identities following the Reform Act of 1832. Burke’s constitutional position as a defender of the 1688–9 settlement, as well as his support of Catholic relief, remained unsavoury for many Tories and Conservatives. Significantly, this static reading of the constitution was deemed to clash with influential historical narratives of the British Constitution which classified its nature as essentially flexible and dynamic. This chapter also examines the various interpretations of Burke’s position on established religion, and the role this played in assessing his political thought.
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Beverley, Baines, and Rubio-Marin Ruth. Part VI Constitutional Theory, C Key Debates in Constitutional Theory, Ch.45 Feminist Constitutionalism in Canada. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780190664817.003.0045.
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This chapter examines the Canadian Constitution through feminist lenses. It proposes a feminist framework to evaluate constitutional law. Feminist constitutionalism aims to promote women’s agency and to protect their rights fully. Feminist constitutionalism examines women’s agency in constitutional law. It also examines critically the interpretation of traditional rights, the impact of constitutionally structured diversity, and the approach to equality rights. Feminist constitutionalism pays attention to the constitutional protection of women’s reproductive rights and sexual autonomy (domains of autonomy neglected by classical constitutionalism); it also aims to ensure women’s equal rights within the family, and to promote women’s socioeconomic development and democratic rights. This chapter develops the idea of feminist constitutionalism and uses this framework to evaluate critically some aspects of Canadian women’s constitutional experience.
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Larry, Chartrand. Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.17 Métis Constitutional Law Issues. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780190664817.003.0017.
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This chapter provides a review of some of the leading cases on Métis rights and jurisdiction. In terms of rights, the chapter reviews the Powley decision, critiques its determination of Métis identity, and contrasts this with the Métis right to self-determination and membership determination of Métis communities. This chapter also examines the recent Daniels case and the implications of finding that Métis are “Indians” for the purposes of section 91(24) of the Constitution, which is said to allocate power to legislate over Indians to the federal Parliament. The chapter questions this understanding and in particular the plenary nature of section 91(24) as a head of power and argues that it should be understood differently from all the other heads of power allocated between provincial and federal authority under sections 91 and 92 of the Constitution. This chapter also critically examines the definition of Métis adopted by the Supreme Court of Canada in Daniels as overly broad, resulting in problems of Métis identity legitimation and the preference for a race-based definition of Métis Indians as opposed to a political community definition of Métis.
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Tushnet, Mark. Enforcement of National Law against Subnational Units in the US. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198746560.003.0019.
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This chapter is primarily an exposition of the applicable constitutional doctrine on the enforcement of national law against subnational units in the US. It also offers some general observations about the underlying theory of federalism that generates US constitutional doctrine. In the US the question of the enforceability of national law against state governments is a matter of some theoretical interest but relatively little practical importance. The reasons for that situation are a combination of institutional and historical conditions, which the chapter refers to in more detail. For those outside the US, however, the primary message here is that the constitutional doctrine dealing with this sort of enforcement is quite limited in scope and importance, in contrast to its importance in systems whose constitutions create a less centralized version of constitutional federalism.
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Robert F, Williams. Part II Rights Guarantees under State Constitutions: the New Judicial Federalism, 7 Lockstepping State Constitutional Rights with Federal Constitutional Law. Oxford University Press, 2009. http://dx.doi.org/10.1093/acprof:oso/9780195343083.003.0007.
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This chapter discusses the practice — adopted by a number of state courts — of stating that state constitutional rights provisions will be interpreted identically to, or in “lockstep” with, similar or identical federal constitutional rights provision. State courts do this in a variety of ways, ranging from cases where they do not seem to acknowledge the possible difference between state and federal rights protections; to case-by-case adoption of federal constitutional interpretations; to “prospective lockstepping” where they announce that in the future the state and federal rights provisions will be interpreted identically or according to some other similar formulation. The chapter gives examples of these different approaches, as well as variations on them. It includes a specific focus on the wide range of state constitutional equality provisions, which, according to many state courts, are to be interpreted the same way as the federal Equal Protection Clause. These various forms of prospective lockstepping are criticized, on the grounds that they cannot actually represent “holdings” and are therefore not binding on future courts.
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Zelinsky, Edward A. State Constitutions on Religion and Taxation. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190853952.003.0002.
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This chapter examines the states’ respective constitutional provisions concerning churches and taxation. These state constitutional measures mandate property tax exemption for religious properties along with exemption for secular eleemosynary properties. However, there is important diversity within the states’ constitutional consensus exempting sectarian properties. Some state constitutions exempt relatively narrowly, relieving from property taxation only “houses of worship.” Other states define exempt property more broadly, extending constitutional tax immunity to any kind of “religious” property, including, for example, sectarian summer camps sponsored by churches and parsonages in which clergy live. This state-by-state diversity in the tax treatment of religious persons and actors is an important theme in this chapter and throughout the book, and an important strength of our federal system of taxation.
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Niraja Gopal, Jayal. Part III Constituting Democracy, Ch.10 Citizenship. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.003.0010.
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This chapter examines the question of citizenship in the Indian Constitution. It first considers the debate in the Indian Constituent Assembly over jus soli vs jus sanguinis citizenship, along with the constitutional settlement of citizenship and the key issues that are most contested—and remain central to—citizenship jurisprudence. It then turns to a discussion of four terms whose interpretation has been central to the case law on citizenship: domicile, intention, migrant, and passport. It also analyses the main provisions of the Citizenship Act 1955 and the amendments to this piece of legislation from the mid-1980s to the present. The rest of the chapter explores the gradual shift from a jus soli conception of citizenship to one based on the principle of jus sanguinis, as well as the patterns of change and continuity in the constitutional and post-constitutional law of citizenship in India.
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Warren J, Newman. Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.48 The Rule of Law, the Separation of Powers and Judicial Independence in Canada. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780190664817.003.0048.
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This chapter considers the meaning, scope, and application of three constitutional principles of surpassing importance in Canada. The rule of law is foundational to Canada’s constitutional framework and may properly be characterized as the first principle of Canadian constitutional law. It is linked to, and in some respects, forms the underpinning for other fundamental principles, including constitutionalism, federalism, democracy, and parliamentary sovereignty. As the latter principles are the focus of chapters by other commentators in this Handbook, this chapter will examine the rule of law primarily in relation to the separation of powers and judicial independence. The principle of judicial independence is also essential to the functioning and structure of the Constitution, given the role the courts are called upon to play in policing the constitutional limits of legislative power and administrative action. The separation of powers is still an emerging principle in Canada, but also increasingly viewed as fundamental.
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Sébastien, Grammond. Part III Indigenous Peoples and the Canadian Constitution, B Treaties, Ch.14 Treaties as Constitutional Agreements. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780190664817.003.0014.
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This chapter reviews the history of treaty-making with the Indigenous peoples of Canada. After an initial period of roughly equal relationships, colonial authorities increasingly used treaties as a domestic law concept aimed at securing control over Indigenous land. The practice was continued after Confederation, but there appears to be a major misunderstanding as to the terms of those treaties, in particular as to the purported extinguishment of Aboriginal title. After a 50-year hiatus, treaty-making resumed in 1975 with the signing of ‘land claims agreements’ in most of the Canadian north. These agreements not only provide for the sharing of land, they also contain detailed provisions with respect to co-management of natural resources and, in some cases, self-government. Canadian law now affords statutory and constitutional protection to treaty rights, and courts are prepared to take into account extrinsic and oral evidence in interpreting treaties.
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Abhinav, Chandrachud. Part VII Rights—Substance and Content, Ch.43 Due Process. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198704898.003.0043.
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This chapter examines the guarantee of ‘due process of law’ in the Indian Constitution. After providing an account of Constituent Assembly Debates and the historical intent behind this guarantee, the Chapter explores how substantive due process came to become a part of Indian constitutional law. Through a reading of important cases, it demonstrates the shift from substantive due process to procedural due process before turning to a third kind of due process presently seen in Indian constitutional law that is distinct from these two standard forms. It examines this third form of ‘pure form’ due process, as well as provides some reflections upon the concepts of arbitrariness and reasonableness and their relationship with this guarantee.