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1
Fauzani, Muhammad Addi, Nur Aqmarina Deladetama, Muhammad Basrun, and Muhammad Khoirul Anam. "Living Constitution in Indonesia: The Study of Constitutional Changes Without A Formal Amendment." Lentera Hukum 7, no. 1 (April 4, 2020): 69. http://dx.doi.org/10.19184/ejlh.v7i1.13953.
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The discussion regarding the living constitution in Indonesia has been increasingly important. The importance of this discussion deals with to the extent it has developed, particularly after Indonesia's constitutional amendment from 1999 to 2002. The current study of constitutional change in Indonesia, as a result of the constitutional amendment during Reformation, adds an emphasis on its change without a formal amendment. Thus, this paper will discuss the urgency of enforcing the amended 1945 Constitution in the lens of the living constitution and how to uphold it through the living constitution. This study uses doctrinal research and, in examining the case, it uses the statutory and conceptual approaches. The result of the study shows that the urgency of upholding the constitution through the living constitution relies on the concept of the living constitution that can dynamize the 1945 Constitution. In response to difficulties to formally amend the 1945 Constitution that depends on political will and rigid juridical condition, there should be a shift in the method of interpretation of the constitution by the Constitutional Court judges, from originalism to the living constitution. The enforcement of the 1945 Constitution through the living constitution can apply the constitutional convention and the interpretation by constitutional judges. This study suggests that the Government and the House of Representatives and other relevant state institutions can use the living constitution, by taking into account the constitutional convention is a source in the organization of the state to patch up the weaknesses of the constitution.
Keywords: Living Constitution, Constitutional Changes, Formal Amendment.
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Fauzani, Muhammad Addi, Nur Aqmarina Deladetama, Muhammad Basrun, and Muhammad Khoirul Anam. "Living Constitution in Indonesia: The Study of Constitutional Changes Without A Formal Amendment." Lentera Hukum 7, no. 1 (April 4, 2020): 69. http://dx.doi.org/10.19184/ejlh.v7i1.13953.
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The discussion regarding the living constitution in Indonesia has been increasingly important. The importance of this discussion deals with to the extent it has developed, particularly after Indonesia's constitutional amendment from 1999 to 2002. The current study of constitutional change in Indonesia, as a result of the constitutional amendment during Reformation, adds an emphasis on its change without a formal amendment. Thus, this paper will discuss the urgency of enforcing the amended 1945 Constitution in the lens of the living constitution and how to uphold it through the living constitution. This study uses doctrinal research and, in examining the case, it uses the statutory and conceptual approaches. The result of the study shows that the urgency of upholding the constitution through the living constitution relies on the concept of the living constitution that can dynamize the 1945 Constitution. In response to difficulties to formally amend the 1945 Constitution that depends on political will and rigid juridical condition, there should be a shift in the method of interpretation of the constitution by the Constitutional Court judges, from originalism to the living constitution. The enforcement of the 1945 Constitution through the living constitution can apply the constitutional convention and the interpretation by constitutional judges. This study suggests that the Government and the House of Representatives and other relevant state institutions can use the living constitution, by taking into account the constitutional convention is a source in the organization of the state to patch up the weaknesses of the constitution.
Keywords: Living Constitution, Constitutional Changes, Formal Amendment.
3
Kavanagh, Aileen. "The Idea of a Living Constitution." Canadian Journal of Law & Jurisprudence 16, no. 1 (January 2003): 55–89. http://dx.doi.org/10.1017/s0841820900006639.
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This article is a jurisprudential analysis of the idea of a ‘living Constitution’, as a common feature of the constitutional practice in democratic countries. The main argument of the article is that constitutional interpretation encompasses, rather than excludes the judicial power to develop and change the content of constitutional guarantees. The metaphor of the ‘living Constitution’ is appropriate to the nature of constitutional adjudication because it suggests gradual, incremental change on a case-by-case basis. While it is stressed that courts can and should be creative, this judicial creativity is subject to significant legal and practical constraints.
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Jasanoff, S. "A Living Constitution." Science 331, no. 6019 (February 17, 2011): 872. http://dx.doi.org/10.1126/science.1203467.
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Diniz Araujo, Luiz henrique. "CANADIAN LIVING TREE DOCTRINE OF CONSTITUTIONAL INTERPRETATION." Revista Direitos Fundamentais & Democracia 25, no. 3 (December 5, 2020): 160–75. http://dx.doi.org/10.25192/issn.1982-0496.rdfd.v25i31874.
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This paper aims to tackle the issue of constraints to constitutional interpretation in light of the Living Tree metaphor from the Canadian Constitutional Law. It further scrutinizes this doctrine in contrast to the Originalism and the Living Constitution doctrines developed in the United States. As a conclusion, the article acknowledges that the Living Tree metaphor has the merit for proposing a reconciliation between fixidity and flexibility in interpretation of the constitution. Nevertheless, in order to convey more objectivity and constraints to interpretation, it should be associated with consideration to precedents and incrementalism.
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Brown, Adam R., and Jeremy C. Pope. "Measuring and Manipulating Constitutional Evaluations in the States: Legitimacy Versus Veneration." American Politics Research 47, no. 5 (June 4, 2018): 1135–61. http://dx.doi.org/10.1177/1532673x18776626.
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American civil religion places the U.S. Constitution on a pedestal. Although this veneration is well-documented, it is unclear where it originates and why other constitutions do not attract the same reverence. We develop a measure of constitutional respect and conduct a randomized survey experiment testing whether new information can change respondents’ evaluations of their state or national constitutions. We find that people do respond to new information about state constitutions, but not to information about the national document, suggesting that Americans view the U.S. Constitution with the sort of veneration and reverence James Madison advocated, while viewing their state constitutions through a more Jeffersonian lens of legitimacy, one that favors continually revising these constitutions to meet the living generation’s needs.
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Rostorotski, Artour. "Book Review - David A. Strauss' The Living Constitution (2010)." German Law Journal 12, no. 7 (July 1, 2011): 1545–52. http://dx.doi.org/10.1017/s2071832200017430.
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David Strauss' The Living Constitution addresses the issues of constitutional interpretation and judicial activism in the United States. The book supports the practice of Living Constitutionalism and attempts to demonstrate its advantages over Originalism. It presents general arguments as well as accounts of landmark decisions in order to demonstrate the superiority of Living Constitutionalism. The Living Constitution also argues for common law as the all-but-exclusive method for constitutional change in the modern United States. Overall, the book presents a well-organized and concise case for Living Constitutionalism.
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Honickman, Asher. "The Original Living Tree." Constitutional Forum / Forum constitutionnel 28, no. 1 (March 20, 2019): 29–36. http://dx.doi.org/10.21991/cf29376.
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One of the main arguments in Canada in favour of the “living tree” doctrine is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same-Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.” The argument goes something like this: beginning with the famous “Persons case” of 1929 (Edwards v. Canada(Attorney General)), the Judicial Committee of the Privy Council recognized the Constitution to be a living tree, capable of evolving to meet new social and economic realities, and this method of constitutional interpretation has remained fundamental to Canada’s constitutional order ever since.
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Gallegos Anda, Carlos E. "Good Living as a Living Law." Australian Journal of Indigenous Education 47, no. 1 (October 27, 2017): 30–40. http://dx.doi.org/10.1017/jie.2017.30.
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In 2008, Ecuador reformed its Constitution after a prolonged period of economic, social and political crises. The momentary rupturing of power structures, that had limited political participation to small clusters of elites, opened participatory spaces for historically marginalised social groups to engage in the process of constitutional drafting. As a result of this unprecedented political shift in participation and inclusiveness, alternative notions of cultural, social and economic rights surfaced. This progressive constitutionalism is thus a novel attempt at overcoming legal formalism in favour of aLiving Law, a law that embraces the contextual settings where it will be applied by scrutinising the historic power structures that have moulded it.Good Livingas a legal principle underlines the enactment of aLiving Law.
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Faraguna, Pietro. "Regulating Religion in Italy." Journal of Law, Religion and State 7, no. 1 (February 7, 2019): 31–56. http://dx.doi.org/10.1163/22124810-00701003.
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This article focuses on state-church relations and on the peculiar implementation of the “idea of secularism” in Italy. First, it explores the formal provisions of the 1848 Constitution. Next, it investigates constitutional provisions that came into force in 1948. Finally, it examines how the actors of the living constitution (legislators, the government, judges, and the Constitutional Court in particular) tried to balance and develop the potentially conflicting principles included in the 1948 Constitution in the area of religious freedom, equality, and state-church relations. The article explores three particularly controversial examples: the teaching of religion in state schools; the display of the crucifix in classrooms; and state funding mechanisms of religious denominations. The main claim of the article is that, with regard to the regulation of religion in Italy, the transformation of the constitutional position of religion did not occur within the formal constitution, but in the “living constitution.”
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Butler, W. "Five Generations of Russian Constitutions: Russia as Part of the Western Legal Heritage." BRICS Law Journal 6, no. 3 (September 14, 2019): 13–21. http://dx.doi.org/10.21684/2412-2343-2019-6-3-13-21.
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The paper is devoted to the study of the relationship between the Russian constitutional history and Western legal traditions. The author argues the position according to which the constitutionalism has been a part of Russian legal history for centuries. On one view of Russian legal history, a written constitution remained an aspiration of the Russian people that was only partly realized in 1906. Marxist legal thought contemplated, or predicted, the “withering away of law” after a proletarian Revolution; adopting a constitution seemed counter-intuitive to this projected vector of history. This paper explores in general outline the five generations of the constitutions of Russia (1918, 1925, 1937, 1978, and 1993) and the maturing of a constitutional tradition in Russia which has led from a blueprint for communism to fully-fledged constitutional rule-of-law social State in which the constitution acts as a restraint upon the exercise of State power and performs the role that a constitution routinely performs as part of the western legal heritage. The author concludes the 1993 Russian Constitution is, for the first time, a living document that could be considered as a reaction against the Russian past, the embodiment of Russian experience, and the repository of Russian values and desires for its future.
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Funk, Kellen. "Shall These Bones Live? Property, Pluralism, and the Constitution of Evangelical Reform." Law & Social Inquiry 41, no. 03 (2016): 742–74. http://dx.doi.org/10.1111/lsi.12213.
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The Supreme Court of the New Deal era transformed the US Constitution, making the Constitution's original protection of property rights give way to democratically popular regulations. In The Evangelical Origins of the Living Constitution (2014), John W. Compton argues that twentieth-century progressives turned the Court toward this “living” interpretation of the Constitution by relying on legislative methods and judicial precedents created by nineteenth-century evangelicals. Evangelical reformers accomplished national prohibition of liquor and lotteries, but their regulations destroyed property rights that were legally valid and socially acceptable at the inauguration of the Constitution. Courts ultimately acquiesced in these novel economic proscriptions because of overwhelming majoritarian sentiment driven by evangelical populism. Relying on a recent literature of law and religion, Compton alters conventional accounts of the US constitutional tradition of protecting property. This essay reverses the path of analysis and argues that evangelical concerns with constitutional property rights challenge standard accounts of law and religion in US history. Rather than a simplistic imposition of moralism, evangelical reform was derived from antislavery liberalism. The legal and religious pluralism that had impeded antislavery, however, also hindered prohibition and spurred evangelicals to seek federal remedies to national sins. Thus national prohibition, no less than New Deal constitutionalism, centered on the US dilemma of how to wield illiberal regulations to safeguard liberalism.
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Halper, Thomas. "The Living Constitution and the (Almost) Dead Contracts Clause." British Journal of American Legal Studies 9, no. 2 (August 4, 2020): 387–403. http://dx.doi.org/10.2478/bjals-2020-0019.
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AbstractUnder pressure to adapt to changing circumstances, the contract clause, though expressed in absolute terms, may now be violated for almost any reason at all. The living Constitution, in short, has virtually killed what was once a key constitutional provision.
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Steilen, Matthew. "REASON, THE COMMON LAW, AND THE LIVING CONSTITUTION." Legal Theory 17, no. 4 (November 11, 2011): 279–300. http://dx.doi.org/10.1017/s1352325211000164.
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This article reviews David Strauss's recent book, The Living Constitution. The thesis of Strauss's book is that constitutional law is a kind of common law, based largely on judicial precedent and commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the common law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the “classical” common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action.
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Setiawan, Fandi. "Peran Guru dalam Menumbuhkembangkan Kesadaran Konstitusional di Daerah Tertinggal melalui Penghayatan Nilai-Nilai Luhur Pancasila." JUPIIS: JURNAL PENDIDIKAN ILMU-ILMU SOSIAL 12, no. 1 (April 30, 2020): 178. http://dx.doi.org/10.24114/jupiis.v12i1.16311.
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The 1945 Constitution as the constitution of the Republic of Indonesia is the supreme law which serves as a guideline for lower laws and for state administrators and the wider community. The amendments to the 1945 Constitution were only limited to the achievement at the written constitution stage, not yet reached the living constitution stage. The constitution should begin to be implemented consistently and consistently. In fact, until now there is still a gap between the constitution on paper and the constitution in reality. The neglect and lack of understanding of the constitutional points still occur in real life including students in disadvantaged areas. To encourage the realization of students' understanding of constitutional awareness in the school, community, national and state environment, the Pancasila and Citizenship Education teachers can become parties who educate students to become children of the nation who have a culture of constitutional awareness through the appreciation of the noble values of Pancasila.
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Klochkova, S. V., I. V. Pogonchenkova, E. A. Rozhkova, N. T. Alexeeva, D. B. Nikityuk, and A. G. Kvaratskheliya. "Features of the Fat Component of the Body of Girls Depending on the Constitutional Specifics." Journal of Anatomy and Histopathology 7, no. 2 (July 3, 2018): 34–38. http://dx.doi.org/10.18499/2225-7357-2018-7-2-34-38.
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The aim of the study is to obtain quantitative data on the absolute and relative content of the body fat component in girls of different constitutional groups living in the Moscow region. Material and methods. The content of body fat in 722 girls, students, residents of Moscow and Moscow region, representatives of the Slavic ethnos was determined by the method of bioimpedance measurements. Thickness of subcutaneous fat folds was determined by the method of caliperometry. The result of the anthropometric survey identified the presence of asthenic, stenoplastic somatotype (leptosomic constitution), endomorph, mesoplastic somatotypes (mesosomic constitution), athletic, subatellite and europlastic somatotypes (megalosomic constitution). Results. In the studied population, regardless of age, is dominated by girls mesosomic (32.5-39.0%) and megalosomic (31.5-33.3%) groups, several less commonly detected women leptosomic (the 18.6-24.3%) and unspecified (9.1-11.7%) of the constitutions. Thickness of subcutaneous fat folds is dominated by girls mesosomic constitution, and has a minimum value when leptosomic. The absolute content of the fat mass is also smaller when leptosomic constitution. In 20 years the thickness of subcutaneous fat folds, as well as the absolute content of body fat mass in mesosomic, megalosomic and uncertain constitution mainly increases, and the girls leptosomic body almost does not change. Conclusion. The studies have shown a significant impact of the constitutional affiliation of girls on the severity of their fat component, which was proved by both caliper measurement and as a result of bioimpedance studies. Age-related changes in the fat content of the body are also associated with the constitutional type.
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Hill, Tanya Y., John Hope Franklin, and Genna Rae McNeil. "African Americans and the Living Constitution." African American Review 31, no. 2 (1997): 308. http://dx.doi.org/10.2307/3042469.
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Whitman, Mark, John Hope Franklin, and Genna Rae McNeil. "African Americans and the Living Constitution." Journal of Southern History 62, no. 4 (November 1996): 798. http://dx.doi.org/10.2307/2211150.
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Keith, Damon J. "African Americans and the living constitution." Public Relations Review 22, no. 2 (June 1996): 205. http://dx.doi.org/10.1016/s0363-8111(96)90018-1.
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Brennan, Timothy. "Thomas Jefferson and the Living Constitution." Journal of Politics 79, no. 3 (July 2017): 936–48. http://dx.doi.org/10.1086/690947.
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Black, Christine M., and Douglas J. Coburn. "An Exercise on Our Living Constitution." NASSP Bulletin 71, no. 500 (September 1987): 76–79. http://dx.doi.org/10.1177/019263658707150011.
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Ribas Vieira, José, Camila Luna de Carvalho, and Mário Cesar da Silva Andrade. "A constituição brasileira está viva? Living constitution e a atualização da constituição pelo Supremo Tribunal Federal na questão das uniões homoafetivas." Revista da Faculdade de Direito da UFG 42, no. 2 (January 4, 2019): 48–75. http://dx.doi.org/10.5216/rfd.v42i2.49168.
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O presente artigo analisa a aplicabilidade da doutrina da Living Constitution ao contexto brasileiro. Partindo do julgamento da Arguição de Descumprimento de Preceito Fundamental 132 e da Ação Direta de Inconstitucionalidade 4277, sobre o reconhecimento jurídico da união estável homoafetiva, investiga-se a adaptabilidade da referida doutrina à prática jurisprudencial do Supremo Tribunal Federal (STF). A defesa de uma Constituição viva, apta a abarcar novas situações, pode conflitar com o sentido pretendido pelo constituinte democraticamente legitimado. Cumpre analisar essa tensão entre atualização e majoritarismo na prática decisória do STF. Metodologicamente, a pesquisa confronta as propostas parlamentares e populares sobre uniões entre pessoas do mesmo sexo apresentadas nas comissões de elaboração do anteprojeto da Constituição de 1988 com a jurisprudência do STF sobre o tema. A partir da doutrina da Living Constitution, teorizada por David Strauss e Cass Sunstein, são analisadas as críticas de autores originalistas, como William Rehnquist. No tema selecionado, a pesquisa identifica um exemplo de como a tensão entre a Living Constitution e o majoritarismo democrático aparece na jurisdição constitucional brasileira. Em conclusão, aponta-se a fragilidade de uma atividade atualizadora da Constituição que não esteja amparada pela coerência com a jurisprudência da Corte. No Brasil, a ausência de uma cultura de precedentes abre a possibilidade de a Living Constitution se degenerar em decisões mais resultantes de volições conjunturais do STF do que de uma evolução jurisprudencial consistente.
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This article analyses the applicability of Living Constitution doctrine in Brazilian context, based on the Allegation of Disobedience of Fundamental Precept (ADPF) 54 and the Direct Action of Unconstitutionality (ADI) 4277 judgments, about the legal recognition of homosexual common-law marriage. It aims to investigate the compatibility of Living Constitution doctrine with the Federal Supreme Court (STF) decisions. Supporting a Living Constitution, able to change over time and embrace new circumstances, tends to confront with the original sense intended by the democratically legitimized Constituent. Therefore, it matters analyses how the STF deals with their judgments in this tension between updating and majoritarianism. Methodologically, the research confronts parliamentary and popular proposals about homosexual common-law marriage, presented in the elaboration commissions of Federal Constitution of 1988 preliminary draft, with the STF judgments about this subject. Starting from the Living Constitution doctrine, theorized by David Strauss and Cass Sunstein, have been analyzed criticisms from originalist authors, as William Rehnquist. On the theme in vogue, the research identifies an example of how does the tension between Living Constitution and democratic majoritarianism appear in the Brazilian constitutional jurisdiction. In conclusion, it is presented the fragility of Constitution updating that is not coherent with the Court’s jurisprudence. In Brazil, the lack of an established precedent culture allows Living Constitution doctrine to degenerate into judicial decisions, more resultant of STF conjuncture wills than a consistent evolution of the Court’s decisions.
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Larsen, Bárður, and Kári á Rógvi. "A New Faroese Constitution? – Faroe Islands between Parliamentary Sovereignty and Sub-Sovereign Constitutionalism, between Statutory Positivism and Pragmatic Reasoning." Yearbook of Polar Law Online 4, no. 1 (2012): 341–63. http://dx.doi.org/10.1163/22116427-91000097.
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Abstract The Bill for a Faroese Constitution [StjórnarskipanFøroya] submitted to Parliament [Løgtingið] on 6 March 2010, proposes a comprehensive Constitution for the Faroe Islands, for the first in history. This seems left somewhat on the late side, since the Faroes are an ancient polity with similar historic developments to Norway and Iceland, both of which got their full-bodied constitutions as sub-sovereign entities, in 1814 and 1874 respectively. Furthermore, few metropolitan powers should prima facie be more accommodating to sub-sovereign constitutions as Denmark, to whose Crown the Faroes have been associated, as she has historically recognised both an Icelandic constitution ‘besides’ and both a Common Constitution1 and EU quasifederal2 structure ‘above’ the Danish one. However, the same proud civil service that produced a beautiful construction of federation with the ‘Basic-Law on the Rights of Nationality’ of 1756 with its elaborate hierarchy of ‘Realms and Lands’ and ‘equivalents’ has perplexingly advised rather strongly against the proposed expression of popular sovereignty of the equivalent Nation of one of these Lands and the intended invitation to continue a long-standing peaceful plurality. In a Note of 2 June 2010, and a supplementary Note of 20 June 2011, the Danish Justice Ministry expressed the disgust of the Danish administrative establishment. The critique mostly focused on the supposed collision course with the Basic Law of the Danish Realm [groundless] and claimed that the Faroese Constitution would create considerable ‘doubt of a constitutional character.’ We argue that the issues raised do not follow from any convincing constitutional doctrine but are more ideological and based on an anti-pragmatic, a-historic and fundamentalist view of constitutional law, best categorised as late-late statutory positivism. As an alternative, we suggest the tradition of the Home Rule compact as a pragmatic and constructive disagreement that the Justice Ministry is about to abandon at its peril. Blocking the development of a living constitutional culture on the Faroe Islands will create tension that will be released somehow. The Ministry’s preoccupation with the proclamation that all power stems from the People of the Faroe Islands is at odds with the classic and almost trivial democratic notion of popular sovereignty. However, this is but the latest skirmish in a larger tragic and unnecessary campaign against realism and, indeed, reality that creates all sorts of problems for a small polity that needs to focus on principled solutions and gradual developments of the particulars of law in all fields.
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Barrett, John C. "The material constitution of humanness." Archaeological Dialogues 21, no. 1 (May 16, 2014): 65–74. http://dx.doi.org/10.1017/s1380203814000105.
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AbstractThis contribution responds to recent calls to establish a ‘symmetrical archaeology’ that will assign agency both to humans and to things. My case is that living and non-living things should be distinguished, and for archaeology to be particularly concerned with the ways different qualities ofhumannesshave been constituted in the symbiotic relationships betweenHomo sapiensand other living and non-living things.
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Gillman, Howard. "The Collapse of Constitutional Originalism and the Rise of the Notion of the “Living Constitution” in the Course of American State-Building." Studies in American Political Development 11, no. 2 (1997): 191–247. http://dx.doi.org/10.1017/s0898588x00001656.
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In constitutional studies, the topic of “original intent” is typically treated as a debate within normative constitutional theory about the most appropriate way for interpreters to orient themselves to the text of the Constitution. The central question is whether American constitutionalism, properly understood, obligates interpreters to base decisions on what the framers had in mind when they wrote the Constitution or whether it obligates interpreters to adapt general constitutional principles to changing circumstances or more enlightened sensibilities. Originalism views interpretation as a matter of decoding a set of specific instructions but runs the risk that our institutional arrangements and conceptions of justice will be inappropriately tied to the antiquated experiences and prejudices of generations long gone – what Corwin referred to as “rotting structures” or “discarded” and “unworkable” theories. Non-originalism, or some notion of the “living Constitution,” encourages judges to keep the Constitution relevant for contemporary concerns and purposes but runs the risk that this will lead them to enforce a version of the fundamental law that was never formally authorized by the people.
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Lobel, Jules. "The Constitution Abroad." American Journal of International Law 83, no. 4 (October 1989): 871–79. http://dx.doi.org/10.2307/2203376.
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In recent years federal courts have faced a growing number of challenges to United States actions abroad. Citizens living abroad have brought claims alleging that their property was unlawfully taken or that their lives were threatened by United States governmental action. Aliens living in foreign countries have also invoked constitutional protections—Nicaraguans have alleged torture and assassination attributed to CIA activities in Central America; a Mexican alleged that his home in Mexico was searched by Drug Enforcement Agency officials without a search warrant; a Lebanese citizen claimed that he was unlawfully arrested and interrogated in international waters by U.S. agents; a Polish refugee tried for hijacking in a special United States court convened in Berlin sought the right to a jury trial. These cases test the extent to which the Constitution limits U.S. conduct abroad.
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Alexander, Larry. "The Coxford Lecture Of Living Trees and Dead Hands: The Interpretation of Constitutions and Constitutional Rights." Canadian Journal of Law & Jurisprudence 22, no. 2 (July 2009): 227–36. http://dx.doi.org/10.1017/s0841820900004677.
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The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree constitutional interpretation. The only “living trees are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order.
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Martínez Dalmau, Rubén. "Democratic Constitutionalism and Constitutional Innovation in Ecuador." Latin American Perspectives 43, no. 1 (March 4, 2015): 158–74. http://dx.doi.org/10.1177/0094582x15571277.
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Since the renewal of constituent power in the 1991 Colombian constitution, various democratic constitutions in Latin American countries have undertaken important structural changes in both the organization of public powers, the democratic legitimacy of power, and the constitutional reform of rights. Among these new constitutional texts in Latin America, the 2008 Ecuadorean constitution, with sumak kawsay (living well) as its axiological basis, stands out for its originality and theoretical advances as the first case of transitional constitutionalism. All these constitutions, however, are faced with an enforcement problem that hinders their operation as instruments of social transformation. Desde la renovación del poder constituyente en la Constitución colombiana de 1991, varias constituciones democráticas en los países de América Latina han llevado a cabo importantes cambios estructurales tanto en la organización de los poderes públicos, la legitimidad democrática del poder, y la regeneración constitucional de los derechos. Entre estos nuevos textos constitucionales en América Latina, la constitución de Ecuador 2008, con el sumak kawsay (buen vivir) como su base axiológica, destaca por su originalidad y avances teóricos como el primer caso de constitucionalismo de transición. Todas estas constituciones, sin embargo, se enfrentan a un problema de aplicación que dificulta su funcionamiento como instrumentos de transformación social.
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Jaworski, Peter Martin. "Originalism All the Way Down. Or: The Explosion of Progressivism." Canadian Journal of Law & Jurisprudence 26, no. 2 (July 2013): 313–40. http://dx.doi.org/10.1017/s0841820900006093.
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It is often said that the Constitution does not interpret itself, that we are in need of a theory of interpretation for constitutions. This need has led to a flourishing literature on constitutional interpretation. Statutes, also, stand in need of a theory of interpretation, and that obvious need has led to a robust literature on that subject. What is said too infrequently is that Supreme Court rulings do not interpret themselves, that we are in need of a theory of interpretation for rulings. In this essay, I assess the question of what is an appropriate doctrine of ruling interpretation by applying the arguments of the living constitutionalists to Supreme Court rulings. Contemporary proponents of a progressive doctrine of interpretation for constitutions—variously called the ‘living tree,’ ‘living force,’ or ‘living constitution’ doctrines of interpretation—appear to embrace two theses. The first thesis, which we can call the ‘progressive thesis,’ is the view that the Supreme Court ought to ensure that our highest laws are in compliance with contemporary values. The second thesis is the ‘doctrine of judicial supremacy’ which maintains that all lower judicial and non-judicial actors are to accept and adhere to the rulings of the Supreme Court.I argue that these two theses—the progressive thesis and the doctrine of judicial supremacy—are in tension with one another. Embracing the second thesis requires abandoning the first, while embracing the first thesis requires abandoning the second. Contemporary living constitutionalism, as defended by prominent advocates like Chief Justice Beverly McLachlin, Justice Ian Binnie, Australian Justice Michael Kirby, legal scholar Peter Hogg, and others, is incoherent. In the end, those who embrace the progressive thesis must rely on the claim that the Supreme Court ought to have a monopoly on the use of progressive interpretation, and that lower courts and non-judicial actors must use originalist methods for interpreting the text of Supreme Court rulings. To make this argument, the advocates of progressive constitutional interpretation must be advocates of originalism—not half-hearted supporters, but enthusiastic, full-on supporters, however much they may, elsewhere in their writings, condemn originalism as a practically-flawed, unworkable, or unenlightened method of interpretation.
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Salikov, Marat S., Svetlana E. Libanova, and Igor Yu Ostapovich. "Constitutional Supervisory Rulemaking in the Context of the Doctrine of the Living Constitution." Vestnik Tomskogo gosudarstvennogo universiteta, no. 440 (March 1, 2019): 219–30. http://dx.doi.org/10.17223/15617793/440/30.
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Undurraga, Verónica. "Engendering a constitutional moment: The quest for parity in the Chilean Constitutional Convention." International Journal of Constitutional Law 18, no. 2 (July 2020): 466–70. http://dx.doi.org/10.1093/icon/moaa049.
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Abstract Chile is living a constitutional moment, and the achievement of parity democracy might be part of it. The constitutional roadmap includes a plebiscite where citizens will decide whether they want a new constitution. The plebiscite was to be held in April 2020 but, due to the COVID-19 emergency, it had to be rescheduled to take place in October this year. If the option for a new constitution wins, a constituent body must be elected. To ensure parity in that election, a group of feminist political scientists and a cross-party alliance of women deputies drafted a parity bill that was approved by the Chamber of Deputies in December 2019, and is now being discussed in the Senate. If the bill is passed in its current terms, the new Chilean Constitution will be the first constitution ever written by an equal number of men and women.
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Kraśnicka, Izabela. "Living or Dead? Specifics of the Language of the Second Amendment to the U.S. Constitution." Studies in Logic, Grammar and Rhetoric 38, no. 1 (September 1, 2014): 123–36. http://dx.doi.org/10.2478/slgr-2014-0035.
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Abstract The original text of the Constitution of the United States of America, written over 200 years ago, constitutes the supreme source of law in the American legal system. The seven articles and twenty seven amendments dictate understanding of fundamental principles of the federation’s functioning and its citizens’ rights. The paper aims to present the evolution of the U.S. Constitution’s language interpretation as provided by its final interpreter - the Supreme Court of the United States. Example of the Second Amendment will be analyzed to present the change in understanding of the language grammar and, as a consequence, the sense of the right to keep and bear arms in the light of the Supreme Court’s decision in the case of District of Columbia v Heller (554 U.S. 570 (2008)). It will argue for the accuracy of statement of Charles Evans Hughes, former Chief Justice of the U.S. Supreme Court: “We are under a Constitution, but the Constitution is what the judges say it is...”
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Dudko, I. G. "Modern Concepts in Russian Constitutional Law." Actual Problems of Russian Law 15, no. 3 (April 9, 2020): 35–46. http://dx.doi.org/10.17803/1994-1471.2020.112.3.035-046.
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The change of the scientific paradigm in Russian jurisprudence is accompanied by the affirmation of pluralism in a legal science. The paper has highlighted that the modern Russian constitutional theory seeks to express itself in the problems of ontological and axiological foundations, claiming to form an integral ”constitutional philosophy.”Constitutional axiology represents one of the most significant concepts of constitutionalism. Constitutional axiology is built as a field of scientific reflection (the nature, content, system of constitutional values). From these standpoints, the author provides for the assessment of law-enforcement carried out by the body of constitutional justice. The paper recognizes the high importance of research of constitutional law from the axiological point of view.The author has concluded that constitutional values as a reflection and expression of the “charter” of the life of the society (“protoconstitutional”) represent objectivated systemic totality functioning as the ultimate goal of constitutional development. Constitutional values represent concepts that must correspond to the social and spiritual environment of the society and the purpose of the State.The paper critically assesses the concept of a “living constitution” in its Russian interpretation as the constitutional and appraisal activity of the Constitutional Court of the Russian Federation with regard to “generation” of constitutional values. It is noted that the result of the work of the Constitutional Court of the Russian Federation expressed in its legal determinations, can not represent other (“generated” by it) constitutional values except those contained in the Constitution of the Russian Federation. “Transformation” of the content and legal attitudes and meanings of the Constitution, constitutional values without changing the text of the Constitution may lead to “distortions” of the essence of the Constitution and intent for the Constitution to be an act with the highest legal force.
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Kukulenko-Lukyanets, I. V. "The psychological genesis of the female-teacher’s vital space." Fundamental and applied researches in practice of leading scientific schools 27, no. 3 (June 29, 2018): 89–105. http://dx.doi.org/10.33531/farplss.2018.3.11.
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The dissertation is devoted to defining genesis, psychological peculiarities, factors and regularities of potentials for the constitution of a female-teacher’s vital space as a dynamic integral entity. Conceptualized the creative creation of woman in the system of living space determination, which is considered as the integral formation of interaction of nonpersonal, personal, interpersonal, activity and daily measurements of women's life activity, which corresponds to the non-reflexive-reflexive continuum of personality potential. Measurement of everyday life (non-reflexive level) as the dynamics in the sphere of reflexive activity (personal, professional fields) outlines the limits of the living space of a person as a subject.
The constitution of the vital space of a woman-teacher is considered as a derivative of the deep, physiological, anatomical and sociocultural ability of a woman to create (creation of life), in close interdependence of actual gender stereotypes, childbirth, creation of a family, professional (active) implementation and self-realization. The genesis of constituting a woman's living space is regarded as a process of life-creation, transcendence, overcoming the limit of their own possibilities, of existential elevation over passivity and the chance of its existence. The semantics of the concept of "world-creation essence of a woman" is determined by metatheoretical analysis of philosophical, psychological, theological, and historical studies on the problem of women's ability to create. A model for constituting the living space of a woman is created, taking into account the depth-psychological determination, archetype-role integrity and activity mediation.
The vital space of a woman-teacher and deepened the idea of the sovereignty of the living space as a form of subjectivity, personal activity, manifested in the ability of man to control, to establish his psychological space are presented. The theoretical significance of the results of the study is based on the experimental verification of the idea of a harmonious combination of Anima and Animus as a source of creative energy for a woman-teacher in constituting a living space; in the conceptualization of the category "the living space of a woman-teacher" in connection with the architectural determination of the functions of personal creativity (world creation), which embodies a meaningful for the individual the measurement of the primary doping of the truths, the constitution of which is provided by the transcendental subjectivity.
It is stated that the predominance of androgyny in women as the most productive and harmonious state for the realization of their potential in all spheres of their life-giving activity. However, high levels of anxiety, internal conflict, rigidity of the psyche and behavior are destructive factors that offset the creative potential of the individual and his ability to create his or her living space. For the first time, it has been determined that the women of the scientific and pedagogical sphere of activity are dominated by the androgenic type of gender identity. For the first time, it has been experimentally proved the need to update the masculine qualities of the woman's personality androgynous type to reduce the level of anxiety, conflict, rigidity and increase the creative potential of the subject; determined levels of creativity, anxiety, conflict, rigidity / lability among female teachers depending on the presence or absence of children, marital status (married, unmarried, divorced, widow), age periodization and place of residence and work (rural schools, city schools, university). The interdependence of the constitution of female-teacher’s vital space in connection with the peculiarities of the formation of professional self-consciousness is determined.
The psychological model of the optimal harmonious living space of a woman is constructed. The three-factor structure of the constitution of the living space of a woman, presented by the following factors: "expansive creative activity", "manipulative-regressive femininity", "projective-anxiety control", is developed. The conceptual model of the creative creation of a woman is realized. The regularities and tendencies of the ability to constitution a woman's own living space in the conditions of purposeful psychological influence on the model of genetic-oriented psychotherapy are revealed.
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Taraban, Nikolay A. "THE 'LIVING' CONSTITUTION PHENOMENON IN THE RUSSIAN CONSTITUTIONALISM." State power and local self-government 9 (September 19, 2018): 38–42. http://dx.doi.org/10.18572/1813-1247-2018-9-38-42.
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Morrison, Jeffry H. "The Presidents and the Constitution: A Living History." Journal of American History 104, no. 2 (September 2017): 466–67. http://dx.doi.org/10.1093/jahist/jax181.
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Okon, Emmanuel E. "The Environmental Perspective in the 1999 Nigerian Constitution." Environmental Law Review 5, no. 4 (December 2003): 256–78. http://dx.doi.org/10.1177/146145290300500403.
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Environmental degradation is bound to increase as long as human population increases and new technologies are invented. In order to arrest the problems of environmental degradation, a number of approaches have been adopted. Among such approaches are the integration of environmental protection policies into development programmes, enactment of comprehensive legislation on all segments of environment and the inclusion of environmental provisions in the constitutions of most countries. Unfortunately, while some countries make their constitutional provisions on environment enforceable, others do not. In Nigeria, indirect environmental provisions were first made part of the constitution in the 1979 Constitution. In 1999, direct environmental provision was entrenched in the 1999 Constitution. Unfortunately, Chapter II of the 1999 Constitution, which contains the environmental provisions, is unenforceable. While the Nigerian courts have done nothing tangible to enforce the provisions of the constitution on environment, on the other hand, the Indian courts have taken positive steps to enforce provisions of the Indian Constitution on environment. In conclusion, apart from other suggestions made, it is strongly recommended that Nigerian courts should emulate the efforts made by Indian courts to enforce provisions of the Indian Constitution on environment. The world has moved far away from the era when it was believed that the only rights which a government is called upon to guarantee and protect are the natural rights of man. By living in nation-states and in organised communities, man has acquired new rights, which are now regarded by many civilised countries as just as inalienable as those rights with which nature endows him at birth. The right to education and work are among such rights. Increasingly important in some countries is the addition of the right to a decent and healthy environment to these newly acquired rights.1
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Miller, Bradley W. "Beguiled By Metaphors: The “Living Tree” and Originalist Constitutional Interpretation in Canada." Canadian Journal of Law & Jurisprudence 22, no. 2 (July 2009): 331–54. http://dx.doi.org/10.1017/s0841820900004720.
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Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in the new originalist theories that have been developed principally (but not exclusively) in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 (and periodically reaffirmed thereafter), is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine (pausing to engage with theoretical arguments that have been made in its defence) and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: (1) the doctrine of progressive interpretation; (2) the use of a purposive methodology in progressive interpretation; (3) the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and (4) the presence of other constraints on judicial interpretation.
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Policastro, Pasquale. "Constitution, Ethos and Change of Life in Common: Some Introductive Reflections on the Example of Icelandic Constitutional Project." Law and Administration in Post-Soviet Europe 6, no. 1 (December 1, 2019): 59–72. http://dx.doi.org/10.2478/lape-2019-0006.
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Abstract The Icelandic constitutional movement was created to address and develop a new constitutional form based upon transparency, responsibility and participation. Taking into consideration the events, which took place in 2008 this expectation appeared more than legitimate. Furthermore, the quality of the debate, which took place within the civil society and in the cooperation between civil society and Constitutional Council, are very meaningful elements supporting a genuine possibility of change. The aim of implementing a participation-based constitution may lead to the diversification of the Icelandic project with respect to the typology of the existing constitution. This may produce as a result the development of new checks and balances. For this reason the development of public local services may be an opportunity to develop a social balance with respect of the constitution in force, as well as a living constitution starting from below. In this way the values purported by civil society may lead to higher levels of political freedom and finally to the approval of a new constitution. To keep the Icelandic process communicatively open in a transnational perspective may thus permit other persons to contribute to the development of Icelandic democracy. It may furthermore offer the Icelandic example as a useful tool that could be used by many world societies aiming to implement transparency, responsibility and participation in their public life. Indeed, even though the Constitutional Bill of 2011 will not finally be validly approved as the Icelandic constitution, the problems that it posed, and the possibilities that we see are stemming from them, have in our opinion a general importance for constitutional reflections.
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Yarova, A. S., and A. I. Sisova. "The supreme court of US as an authority of Constitutional jurisdiction." Uzhhorod National University Herald. Series: Law, no. 64 (August 14, 2021): 82–87. http://dx.doi.org/10.24144/2307-3322.2021.64.15.
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Given the uniqueness of the judicial system in the United States of America and the role of the Supreme Court in shaping the country’s entire judicial system, the authors devoted an article to an analysis of the Supreme Court of the United States as the body that makes up the country’s Basic Law, the Constitution. Taking into account the specificity of one of the oldest written Constitutions of the world, it was appropriate to understand the mechanism of its creation, the powers of the body, which creates it also in the characteristics of this body, which the authors of the article have implemented. The authors analyzed a number of scientific works of both domestic and foreign scholars, the legal literature of the United States of America, the provisions of the Constitution, and fundamentally analyzed the legal system of the United States, and in this way the authors reached the correct conclusions. The history of the creation of the Supreme Court of the United States, its functions and powers were also analysed. The stages of the creation of the Constitution and the procedure for amending it were studied; the evolution of the interpretation of various provisions and of the amendments to the Constitution was studied; The role of the Court’s case law in the creation of the Constitution has been clarified; a number of constitutional precedents have been examined, particularly those that have influenced the interpretation of the V Amendment to the United States Constitution. The term «living Constitution» had been interpreted and explained, what the phenomenon was
and what role the Supreme Court played. Sufficient attention has been paid to the individual thoughts and views of Supreme Court judges in the various periods of the institution’s existence. Special attention was also devoted to the analysis of the content of the concept of “constitutional control”, its interpretation in a broad and narrow sense. In the conclusions, the authors stress the principal aim of the founding parents, what meaning was given to the provi-sion of the Constitution, and note the impact of the Court on the State, the social system and the legal status of the individual. In particular, the authors note that the Supreme Court of the United States of America has established effective and acceptable jurisprudence for the Ukrainian judicial system, which has provided the basis for this study.
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Lund, Nelson. "Living Originalism." Texas A&M Law Review 3, no. 1 (September 2015): 31–43. http://dx.doi.org/10.37419/lr.v3.i1.2.
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Until very recently, same-sex marriage would have been regarded as a contradiction in terms. Today, questioning the merits of this novel institution is treated as rank bigotry, and the extraordinary rapidity of the change has been widely noted. Another recent development, perhaps not unrelated, has been the marriage of originalism and living constitutionalism. As an academic theory, originalism arose to counter what was seen as lawless adventurism in the Warren and Burger Courts, displayed especially in opinions that invoked the Fourteenth Amendment without a meaningful effort to interpret its text or to show that the decisions had anything to do with the original purpose of the Amendment. As an academic theory, living constitutionalism, or noninterpretivism, arose in defense of these decisions, which were seen as worthy innovations. Advocates on both sides thought the two theories were irreconcilable. Originalists maintained that judges should respect the original meaning of the written Constitution, namely its text, read when necessary in light of its enactors’ purposes. Noninterpretivists insisted that the original meaning is often impossible to identify and frequently should not be controlling in any event. Professor Jack M. Balkin’s “living originalism” seeks to eliminate the opposition between these theories, and he is open about his agenda: “The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them.” To adapt President Jefferson’s famous statement in his First Inaugural Address, Balkin exhorts us to agree that we are all originalists, we are all living constitutionalists. Perhaps he hopes to hasten the day when originalists meet the same fate as the Federalist Party. If so, he has already made substantial progress. This essay begins with a brief summary of the core features of Balkin’s theory. It then shows that one of his most prominent converts has abandoned originalism, mistakenly believing that Balkin has shown what originalism truly is.
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Taufiqurrohman, Asari. "RELIGIONS IN THE CONSTITUTION OF ASEAN COUNTRIES: The Rule of Law and Welfare Concept." International Journal of Law, Environment, and Natural Resources 1, no. 1 (April 28, 2021): 37–46. http://dx.doi.org/10.51749/injurlens.v1i1.5.
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The study of the constitution could not be covered by the scope of one state only, but also compare it with others. To strengthen cooperation between ASEAN community, we should understand the constitutional concept which follows the rule of law. Even adopted by the majority of nation-state according to with their basic type of the country and nationality (such as culture, religion or norms). To compare it, we have to discuss a more significant idea about the state. This research promoted to explain about the extent of religious content as well as prime religion which recognized on the constitution of the ASEAN countries by using normative legal research, with emphasizes result by comparison among countries. Finally, this research describes how important the religion concept (in each manuscript) to the body of the constitution, to reach “the living constitution” and to show the other side of the welfare concept in ASEAN countries with various theories of laws. The approach method is related to doctrinal legal research.
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Wilson, Anita, Samina Saeed, and Aziz Ur Rahman. "Constitutional Rights of Religious Minorities in Pakistan." Global Political Review V, no. I (March 30, 2020): 316–25. http://dx.doi.org/10.31703/gpr.2020(v-i).34.
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The constitution of Pakistan defines our country as an "Islamic State". Pakistan is predominantly a State established for Muslims but many non-Muslims have been living here since its establishment. The constitution of Pakistan stands for equality and justice for all people regardless of caste, gender, religion, region and language. Qualitative methodology has been used. The available data will be taken from the various governmental institutions. In this research the researchers draw an Islamic Republic of Pakistan Constitutional scenario. It will not only shed light on the exact image of Pakistan's religious minorities, but it will also explain their freedom to follow their religion's teachings and pursue their customs and traditions.
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MOORE, CHRISTOPHER, and SAMUEL FREDERICK. "Narrative Constitution of Friendship." Dialogue 56, no. 1 (February 27, 2017): 111–30. http://dx.doi.org/10.1017/s0012217317000129.
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We argue that friendship is constituted in the practice of narration, not merely identified through psychological or sociological criteria. We show that whether two people have, as Aristotle argues, ‘lived together’ in ‘mutually acknowledged goodwill’ can be determined only through a narrative reconstruction of a shared past. We demonstrate this with a close reading of Thomas Bernhard’sWittgenstein’s Nephew: A Friendship(1982). We argue that this book provides not only an illustration but also an enactment of the practice of friendship as the urge to redeem—and thus to instantiate—Aristoteliansuzên(‘living together’) by means of its telling.
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Hapsoro, Fakhris Lutfianto, and Ismail Ismail. "Interpretasi Konstitusi dalam Pengujian Konstitusionalitas untuk Mewujudkan The Living Constitution." Jambura Law Review 2, no. 2 (June 19, 2020): 139–60. http://dx.doi.org/10.33756/jlr.v2i2.5644.
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Tujuan dari tulisan ini yaitu untuk menjelaskan kewenangan Mahkamah Konstitusi menguji konstitusionalitas undang-undang terhadap undang-undang dasar dalam hal ini kewenangan memberikan interpretasi terhadap UUD NRI 1945. Terkait dengan interpretasi konstitusi, maka suatu undang-undang dasar tidak hanya dianggap sebagai suatu documented constitution melainkan dapat bertransformasi menjadi the living constitution. Dalam praktik di Indonesia, dapat dijumpai putusan-putusan Mahkamah Konstitusi yang menggunakan interpretasi konstitusi untuk menilai konstitusionalitas suatu norma. Metode yang digunakan dalam penelitian ini adalah pendekatan yuridis normatif. Hasil penelitian ini menguraikan sejauh mana upaya hakim dalam mewujudkan the living constitution melalui interpretasi hakim dalam pengujian konstitusionalitas. Dalam menafsirkan konstitusi, hakim bebas menggunakan metode interpretasi apapun. Namun kebebasan memilih dan menggunakan metode interpretasi tersebut harus tetap berada dalam koridor Pancasila dan UUD 1945. Hakim harus cermat, mampu memperhatikan, menggali hakekat atau merefleksikan suatu ketentuan pasal di dalam UUD sesuai dengan nilai-nilai Pancasila dan UUD 1945.
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Uvarov, A. A. "An Expanding Meaning of Presidential Amendments to the Constitution of the Russian Federation." Lex Russica, no. 11 (November 15, 2020): 43–52. http://dx.doi.org/10.17803/1729-5920.2020.168.11.043-052.
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The paper deals with the issues of interconnectedness and the role of constitutional amendments introduced by the President of the Russian Federation to the current Constitution of the Russian Federation on January 20, 2020. In assessing the meaning and content of a great deal of amendments to Chapter 3 of the Constitution of the Russian Federation, the author concludes that they have additional, however, sometimes more important value in the context of the hierarchy of constitutional norms, which is directly related to the chapters of the Constitution that are not subject to any revision. Despite the formal inalterability, the foundations of the constitutional order have in fact as a result of the amendments gained such new provisions as: “the stateconstituing people that is a part of the multinational union of equal peoples of the Russian Federation”; “ban on alienation of a part of the territory of the Russian Federation and calls for such actions”; “non-enforcement of decisions of interstate bodies adopted on the basis of the provisions of international agreements of the Russian Federation in their interpretation contrary to the Constitution of the Russian Federation”; “the state guarantee of minimum wage not less than the minimum living wage of the working population.” The rules governing certain fundamental rights and freedoms of man and citizen (art. 37–39, 44 of the Constitution of the Russian Federation) have been supplemented with new content without being formally altered. Ambivalence of local self-government leading to opposition between local and state authorities, partly resulting from the provision of Article 12 of the Constitution of the Russian Federation concerning the autonomy of local self-government bodies. Their failure to enter the system of public authorities is partially minimized by the provision on their unity in the system of public power. However, many, and at first glance minor, amendments to Chapter 8 of the Constitution of the Russian Federation significantly reduce the potential of power for the local population, turn the constituent rules concerning its powers to the reference rule. The conclusion draws attention to some issues in the activity of the Constitutional Court of the Russian Federation on the implementation of these constitutional amendments.
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O'Regan, Kate J. "The best of both worlds? some reflections on the interaction between the common law and the Bill of rights in our new constitution." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 2, no. 1 (July 10, 2017): 1. http://dx.doi.org/10.17159/1727-3781/1999/v2i1a2890.
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The relationship between the Bill of Rights in the South African Constitution of 1996 and the common law is analyzed in this paper. "Common law" is understood broadly to include not only the Roman-Dutch law, but also the wide variety of legal sources and traditions which make up South African law, including African tradition, Muslim practice and the English law heritage.Firstly an exposition of the chief characteristics of the hybrid system of South African common law is given. It is shown that the common law is not codified; that it is a living and organic system of law constantly under legislative and judicial review; that its sources vary from judicial precedent to civilian authorities, English, indigenous customary and Muslim law; that the style of litigation and adjudication is English rather than Continental in Character and that when a common law rule is modified, it is done retrospectively in conflict with principles of legal certainty.Secondly the chief constitutional provisions relating to the relationship between the Constitution and the common law are considered. The supremacy clause (section 2) renders a common law rule which is inconsistent with the Constitution invalid from the date of the Constitution unless a court gives a different ruling in accordance with justice and equity. Courts have the inherent power to develop the common law, but the Constitutional Court may do so only in constitutional matters. Two forms of constitutional normative effects may be distinguished: direct (as in sections 2 and 8(1)) and indirect (as in section 39(2)). In terms of the latter the spirit, purport and objects of the Bill of Rights are to guide the development of the common law.Thirdly the interaction between the common law and the Constitution is thoroughly explored with reference to common law rules that are in conflict with the Constitution as well as where the common law already provides protection for the rights provided by the Bill of Rights. These matters are explored with reference to a number of recent judgments of the Constitutional Court, in some of which the common law was effectively developed.It is concluded that the firm normative thrust of the Constitution may well prove to be a rich source of principle for the development of the common law and that the flexibility of the common law may facilitate a cross-pollination between it and the Constitution.
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Graber, Mark A., and H. L. Pohlman. "Justice Oliver Wendell Holmes: Free Speech and the Living Constitution." Journal of American History 78, no. 4 (March 1992): 1476. http://dx.doi.org/10.2307/2079435.
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Strum, Philippa, H. L. Pohlman, and Mark A. Graber. "Justice Oliver Wendell Holmes: Free Speech and the Living Constitution." American Historical Review 97, no. 3 (June 1992): 926. http://dx.doi.org/10.2307/2164922.
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Pohlman, H. L. "Justice Oliver Wendell Holmes: Free Speech and the Living Constitution." Columbia Law Review 91, no. 6 (October 1991): 1561. http://dx.doi.org/10.2307/1123070.
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