Implementing The Constitution

Author : Richard H. FALLON,Richard H Fallon
Publisher : Harvard University Press
Page : 199 pages
File Size : 51,8 Mb
Release : 2009-06-30
Category : Law
ISBN : 9780674036673

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Implementing the Constitution by Richard H. FALLON,Richard H Fallon Pdf

This book argues that the Supreme Court performs two functions. The first is to identify the Constitution's idealized "meaning." The second is to develop tests and doctrines to realize that meaning in practice. Bridging the gap between the two--implementing the Constitution--requires moral vision, but also practical wisdom and common sense, ingenuity, and occasionally a willingness to make compromises. In emphasizing the Court's responsibility to make practical judgments, "Implementing the Constitution" takes issue with the two positions that have dominated recent debates about the Court's proper role. Constitutional "originalists" maintain that the Court's essential function is to identify the "original understanding" of constitutional language and then apply it deductively to current problems. This position is both unwise and unworkable, the book argues. It also critiques well-known accounts according to which the Court is concerned almost exclusively with matters of moral and constitutional principle. "Implementing the Constitution" bridges the worlds of constitutional theory, political theory, and constitutional practice. It illuminates the Supreme Court's decision of actual cases and its development of well-known doctrines. It is a doctrinal study that yields jurisprudential insights and a contribution to constitutional theory that is closely tied to actual judicial practice.

Author : Charles M. Fombad,Nathaniel A Inegbedion,Thulani R Maseko,Lukman Abdulrauf,Tinashe Chigwata,Donald Rukare,Wandisa Phama,Palesa Madi,Makanatsa Makonese,Kamotho Waiganjo,Jane R Serwanga
Publisher : PULP
Page : 247 pages
File Size : 51,5 Mb
Release : 2016-12-30
Category : Constitutional history
ISBN : 9781920538651

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THE IMPLEMENTATION OF MODERN AFRICAN CONSTITUTIONS: Challenges and Prospects by Charles M. Fombad,Nathaniel A Inegbedion,Thulani R Maseko,Lukman Abdulrauf,Tinashe Chigwata,Donald Rukare,Wandisa Phama,Palesa Madi,Makanatsa Makonese,Kamotho Waiganjo,Jane R Serwanga Pdf

Author : Tom Ginsburg,Aziz Z. Huq
Publisher : Cambridge University Press
Page : 325 pages
File Size : 45,9 Mb
Release : 2020-04-30
Category : Law
ISBN : 9781108487733

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From Parchment to Practice by Tom Ginsburg,Aziz Z. Huq Pdf

Asks how the 'parchment' promises of a written constitution are translated into political practice, working through the many problems of constitutional implementation after adoption.

Author : Winluck Wahiu,Markus Böckenförde,Nora Hedling
Publisher : Unknown
Page : 128 pages
File Size : 55,9 Mb
Release : 2011
Category : Constitutional law
ISBN : OCLC:779852624

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A Practical Guide to Constitution Building by Winluck Wahiu,Markus Böckenförde,Nora Hedling Pdf

"A Practical Guide to Constitution Building provides an essential foundation for understanding constitutions and constitution building. Full of world examples of ground-breaking agreements and innovative provisions adopted during processes of constitutional change, the Guide offers a wide range of examples of how constitutions develop and how their development can establish and entrench democratic values. Beyond comparative examples, the Guide contains in-depth analysis of key components of constitutions and the forces of change that shape them. The Guide analyzes the adoption of the substantive elements of a new constitution by looking at forces for the aggregation or dissemination of governmental power, and forces for greater legalization or politicization of governmental power, and examining how these forces influence the content of the constitution. It urges practitioners to look carefully at the forces at play within their individual contexts in order to better understand constitutional dynamics and play a role in shaping a constitution that will put into place a functioning democratic government and foster lasting peace."--

Author : Erin Daly,James R. May
Publisher : Cambridge University Press
Page : 253 pages
File Size : 40,9 Mb
Release : 2018-11-08
Category : Law
ISBN : 9781107165182

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Implementing Environmental Constitutionalism by Erin Daly,James R. May Pdf

Constitutions can play a central role in responding to environmental challenges, such as pollution, biodiversity loss, lack of drinking water, and climate change. The vast majority of people on earth live under constitutional systems that protect the environment or recognize environmental rights. Such environmental constitutionalism, however, falls short without effective implementation by policymakers, advocates and jurists. Implementing Environmental Constitutionalism: Current Global Challenges explains and explores this 'implementation gap'. This collection is both broad and deep. While some of the essays analyze crosscutting themes, such as climate change and the need for rule of law that affect the implementation of environmental constitutionalism throughout the world, others delve deeply into geographically contextual experiences for lessons about how constitutional environmental law might be more effectively implemented. This volume informs global conversations about whether and how environmental constitutionalism can be made more effective to protect the natural environment.

Author : James R. May,Erin Daly
Publisher : Cambridge University Press
Page : 427 pages
File Size : 51,6 Mb
Release : 2015
Category : Business & Economics
ISBN : 9781107022256

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Global Environmental Constitutionalism by James R. May,Erin Daly Pdf

Reflecting a global trend, scores of countries have affirmed that their citizens are entitled to healthy air, water, and land and that their constitution should guarantee certain environmental rights. This book examines the increasing recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts. This phenomenon, which the authors call environmental constitutionalism, represents the confluence of constitutional law, international law, human rights, and environmental law. National apex and constitutional courts are exhibiting a growing interest in environmental rights, and as courts become more aware of what their peers are doing, this momentum is likely to increase. This book explains why such provisions came into being, how they are expressed, and the extent to which they have been, and might be, enforced judicially. It is a singular resource for evaluating the content of and hope for constitutional environmental rights.

Author : Guy Régimbald,Dwight Gordon Newman
Publisher : Unknown
Page : 953 pages
File Size : 49,8 Mb
Release : 2017
Category : Constitutional law
ISBN : 0433493836

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The Law of the Canadian Constitution by Guy Régimbald,Dwight Gordon Newman Pdf

Author : Alexander D. Berndt,Oliver Christian Ruppel,Kathrin Maria Scherr
Publisher : Nomos Verlagsgesellschaft
Page : 0 pages
File Size : 46,8 Mb
Release : 2017
Category : Conference papers
ISBN : 3848741547

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Assessing Progress in the Implementation of Zimbabwe's New Constitution by Alexander D. Berndt,Oliver Christian Ruppel,Kathrin Maria Scherr Pdf

This publication is a timely and careful response to some of the opportunities and challenges that Zimbabwe is currently facing. The contributions are an outflow from the conference held in March 2015 in Harare, entitled "Assessing Progress in the Implementation of Zimbabwe's New Constitution: National, Regional and Global Perspectives". Also by drawing from comparative perspectives, the contributors, who include policy-makers, members of the judiciary, and constitutional law experts, both Zimbabwean and international, reflect among others on the challenge of constitutional alignment, the role of the civil and security services in a constitutional democracy and the role of institutions such as independent commissions and related institutions in entrenching a democratic culture and the rule of law. This publication aims to foster an open intellectual and legal dialogue on Zimbabwe's new Constitution and what it means in daily practice for the people of Zimbabwe.

Author : Adam Chilton,Mila Versteeg
Publisher : Oxford University Press, USA
Page : 397 pages
File Size : 51,6 Mb
Release : 2020
Category : Law
ISBN : 9780190871451

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How Constitutional Rights Matter by Adam Chilton,Mila Versteeg Pdf

Does constitutionalizing rights improve respect for those rights in practice? Drawing on statistical analyses, survey experiments, and case studies from around the world, this book argues that enforcing constitutional rights is not easy, but that some rights are harder to repress than others. First, enshrining rights in constitutions does not automatically ensure that those rights will be respected. For rights to matter, rights violations need to be politically costly. But this is difficult to accomplish for unconnected groups of citizens. Second, some rights are easier to enforce than others, especially those with natural constituencies that can mobilize for their enforcement. This is the case for rights that are practiced by and within organizations, such as the rights to religious freedom, to unionize, and to form political parties. Because religious groups, trade unions and parties are highly organized, they are well-equipped to use the constitution to resist rights violations. As a result, these 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, often lack natural constituencies to enforce them, which makes it easier for governments to violate these rights. Third, even highly organized groups armed with the constitution may not be able to stop governments dedicated to rights-repression. When constitutional rights are enforced by dedicated organizations, they are thus best understood as speed bumps that slow down attempts at repression. An important contribution to comparative constitutional law, this book provides a comprehensive picture of the spread of constitutional rights, and their enforcement, around the world.

Author : David A. Strauss
Publisher : Oxford University Press
Page : 176 pages
File Size : 41,8 Mb
Release : 2010-05-19
Category : Law
ISBN : 0199752532

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The Living Constitution by David A. Strauss Pdf

Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it. In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago. David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.

Author : John Borrows
Publisher : University of Toronto Press
Page : 441 pages
File Size : 41,5 Mb
Release : 2010-01-01
Category : Social Science
ISBN : 9781442610385

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Canada's Indigenous Constitution by John Borrows Pdf

With characteristic richness and eloquence, John Borrows explores legal traditions, the role of governments and courts, and the prospect of a multi-juridical legal culture, all with a view to understanding and improving legal processes in Canada. He discusses the place of individuals, families, and communities in recovering and extending the role of Indigenous law within both Indigenous communities and Canadian society more broadly."--Pub. desc.

Author : Rohit De
Publisher : Princeton University Press
Page : 308 pages
File Size : 46,6 Mb
Release : 2020-08-04
Category : History
ISBN : 9780691210384

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A People's Constitution by Rohit De Pdf

It has long been contended that the Indian Constitution of 1950, a document in English created by elite consensus, has had little influence on India’s greater population. Drawing upon the previously unexplored records of the Supreme Court of India, A People’s Constitution upends this narrative and shows how the Constitution actually transformed the daily lives of citizens in profound and lasting ways. This remarkable legal process was led by individuals on the margins of society, and Rohit De looks at how drinkers, smugglers, petty vendors, butchers, and prostitutes—all despised minorities—shaped the constitutional culture. The Constitution came alive in the popular imagination so much that ordinary people attributed meaning to its existence, took recourse to it, and argued with it. Focusing on the use of constitutional remedies by citizens against new state regulations seeking to reshape the society and economy, De illustrates how laws and policies were frequently undone or renegotiated from below using the state’s own procedures. De examines four important cases that set legal precedents: a Parsi journalist’s contestation of new alcohol prohibition laws, Marwari petty traders’ challenge to the system of commodity control, Muslim butchers’ petition against cow protection laws, and sex workers’ battle to protect their right to practice prostitution. Exploring how the Indian Constitution of 1950 enfranchised the largest population in the world, A People’s Constitution considers the ways that ordinary citizens produced, through litigation, alternative ethical models of citizenship.

Author : Robert D. Cooter
Publisher : Princeton University Press
Page : 435 pages
File Size : 49,5 Mb
Release : 2020-06-30
Category : Law
ISBN : 9780691214504

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The Strategic Constitution by Robert D. Cooter Pdf

Making, amending, and interpreting constitutions is a political game that can yield widespread suffering or secure a nation's liberty and prosperity. Given these high stakes, Robert Cooter argues that constitutional theory should trouble itself less with literary analysis and arguments over founders' intentions and focus much more on the real-world consequences of various constitutional provisions and choices. Pooling the best available theories from economics and political science, particularly those developed from game theory, Cooter's economic analysis of constitutions fundamentally recasts a field of growing interest and dramatic international importance. By uncovering the constitutional incentives that influence citizens, politicians, administrators, and judges, Cooter exposes fault lines in alternative forms of democracy: unitary versus federal states, deep administration versus many elections, parliamentary versus presidential systems, unicameral versus bicameral legislatures, common versus civil law, and liberty versus equality rights. Cooter applies an efficiency test to these alternatives, asking how far they satisfy the preferences of citizens for laws and public goods. To answer Cooter contrasts two types of democracy, which he defines as competitive government. The center of the political spectrum defeats the extremes in "median democracy," whereas representatives of all the citizens bargain over laws and public goods in "bargain democracy." Bargaining can realize all the gains from political trades, or bargaining can collapse into an unstable contest of redistribution. States plagued by instability and contests over redistribution should move towards median democracy by increasing transaction costs and reducing the power of the extremes. Specifically, promoting median versus bargain democracy involves promoting winner-take-all elections versus proportional representation, two parties versus multiple parties, referenda versus representative democracy, and special governments versus comprehensive governments. This innovative theory will have ramifications felt across national and disciplinary borders, and will be debated by a large audience, including the growing pool of economists interested in how law and politics shape economic policy, political scientists using game theory or specializing in constitutional law, and academic lawyers. The approach will also garner attention from students of political science, law, and economics, as well as policy makers working in and with new democracies where constitutions are being written and refined.

Author : Anonim
Publisher : UN
Page : 158 pages
File Size : 51,6 Mb
Release : 2018
Category : Law
ISBN : UCBK:C116916584

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Human Rights and Constitution Making by Anonim Pdf

"This publication is designed to assist United Nations staff who provide human rights advice to States, which undertake to amend an existing constitution or write a new one. It should also be of use to States that undertake constitutional reform, including political leaders, policymakers, legislators and those entrusted to draft constitutional amendments or a new constitution. Further this publication should also facilitate advocacy efforts by civil society to ensure that human rights are properly reflected in constitutional amendments or new constitutions. Finally, this publication, along with the international human rights instruments, should not only provide a standard to measure whether constitutional amendments or a new constitution has appropriately reflected human rights and fundamental freedoms, but also assist in evaluating whether the processes used in constitutional reform are consistent with international procedural norms"--Introduction, page 1.

Author : Richard W. Bauman,Tsvi Kahana
Publisher : Cambridge University Press
Page : 553 pages
File Size : 51,5 Mb
Release : 2006-07-31
Category : Law
ISBN : 9781139460408

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The Least Examined Branch by Richard W. Bauman,Tsvi Kahana Pdf

Unlike most works in constitutional theory, which focus on the role of the courts, this book addresses the role of legislatures in a regime of constitutional democracy. Bringing together some of the world's leading constitutional scholars and political scientists, the book addresses legislatures in democratic theory, legislating and deliberating in the constitutional state, constitution-making by legislatures, legislative and popular constitutionalism, and the dialogic role of legislatures, both domestically with other institutions and internationally with other legislatures. The book offers theoretical perspectives as well as case studies of several types of legislation from the United States and Canada. It also addresses the role of legislatures both under the Westminster model and under a separation of powers system.