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It has been argued that democracy is protected and realized under traditional liberal constitutional forms through constitutional rights such as free speech, freedom of association and the right to vote. This book looks at the relationship between democracy and constitutions.
Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.
Author : Allan C. Hutchinson Publisher : University of Toronto Press Page : 220 pages File Size : 54,6 Mb Release : 2021 Category : Constitutional law ISBN : 9781487507930
Author : Allan C. Hutchinson Publisher : University of Toronto Press Page : 220 pages File Size : 51,7 Mb Release : 2021-06-01 Category : Law ISBN : 9781487537234
Democracy and Constitutions by Allan C. Hutchinson Pdf
As things stand, a commitment to weak democracy and strong constitutionalism ensures that a range of elite groups, actors, and institutions – political, economic, intellectual, and legal – hold considerable sway over constitutional matters, leaving less room for the participation of ordinary people. With the continued primacy of liberal constitutionalism, constitutional law has come to represent and facilitate the centrality of judicial power and authority. In Democracy and Constitutions, Allan C. Hutchinson warns against this deference to a legal elite on questions of constitutional meaning. For Hutchinson, an over-reliance on constitutional law, and a lack of attention to democratic politics, keeps people from influencing the moral and political character of society; it saps civic energies and relegates ordinary people to the sidelines. Engaging and provocative, Democracy and Constitutions charts a course away from the elitism of the present and toward a more democratic future, one that re-balances society’s commitment to both democracy and constitutions. Advocating for a strong democracy and weak constitutionalism, this book places ordinary people at the institutional heart of government and politics, arguing that such a re-calibration is better for democracy and for society.
Rejecting current arguments that international law should be 'constitutionalized', this book advances an alternative, pluralist vision of postnational legal orders. It analyses the promise and problems of pluralism in theory and in current practice - focusing on the European human rights regime, the European Union, and global governance in the UN.
Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law.
Constituent Power and the Law by Joel I. Colon-Rios Pdf
This book examines the relationship between constituent power and the law, and the place of the former in constitutional history, drawing from constitutional theory beyond the Anglo-American sphere, with new material made available for the first time to English readers.
Against the New Constitutionalism by Tamas Gyorfi Pdf
Ever since the Second World War, a new constitutional model has emerged worldwide that gives a pivotal role to judges. Against the New Constitutionalism challenges this reigning paradigm and develops a distinctively liberal position against strong constitutional review that puts the emphasis on epistemic considerations. The author considers whether the minimalist judicial review of Nordic countries is more in line with the best justification of the institution than the Commonwealth model that occupies a central place in contemporary constitutional scholarship.
Democratizing Constitutional Law by Thomas Bustamante,Bernardo Gonçalves Fernandes Pdf
This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on “weak judicial review”. Although different in their approach, the chapters all focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their “deliberative performance” or to create constitutional juries that may be more aware of a community’s constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review.
Author : Antoni Abat i Ninet Publisher : Taylor & Francis Page : 283 pages File Size : 45,6 Mb Release : 2023-07-31 Category : Law ISBN : 9781000919318
Constitutional Law and Politics of Secession by Antoni Abat i Ninet Pdf
This collection presents an analysis of the concept of secession and its constitutional accommodation alongside an assessment of the effects of secession in constitutional and international law. The work proposes a new approach and insights into the existing literature that fill a gap from multidisciplinary and transdisciplinary perspectives. The book approaches the topics of secession, constitutionalism, and their relationship from both theoretical and empirical perspectives, including the analysis of particular secessionist examples, such as Catalonia, the Basque Country, Tigray, the Palestinian minority in Israel, Bosnia and Herzegovina, and the Mapuche Nation, from a comparative constitutional perspective. Elucidating these issues from different methodological and conceptual perspectives produces novelties in the scientific and constitutional debate. The interplay between constitutions, constitutional law, and secession is indeed explored from philosophical, socio-legal, but also from strict constitutional law outlooks. Written by constitutional and public international law experts, the book will be of interest to students, academics, and researchers working in the areas of constitutional law, legal theory, theory of the state, philosophy of law, and political science.
Routledge Handbook of Subnational Constitutions and Constitutionalism by Patricia Popelier,Giacomo Delledonne,Nicholas Aroney Pdf
This handbook provides a toolbox of definitions and typologies to develop a theory of multilevel constitutionalism and subnational constitutions. The volume examines systems with subnational entities that have full subnational constituent autonomy and systems where subnational constituent powers, while claimed by subnational governments, are incomplete or non-existent. Understanding why complete subnational constituent power exists or is denied sheds significant light on the status and functioning of subnational constitutions. The book deals with questions of how constitutions at multiple levels of a political system can co-exist and interact. The term ‘multilevel constitutionalism’, recognized as explaining how a supranational European constitution can exist alongside those of the Member States, is now used to capture dynamics between constitutions at the national, subnational and, where applicable, supranational levels. Broad in scope, the book encompasses many different types of multi-tiered systems world-wide to map the possible meanings, uses and challenges of subnational or state constitutions in a variety of political and societal contexts. The book develops the building blocks of an explanatory theory of subnational constitutionalism and as such will be an essential reference for all those interested in comparative constitutional law, federalism and governance.
A New Statesman Book of the Year A critical analysis of the transformation of constitutionalism from an increasingly irrelevant theory of limited government into the most influential philosophy of governance in the world today. Constitutionalism is universally commended because it has never been precisely defined. Martin Loughlin argues that it is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. An Enlightenment idea that in the nineteenth century became America’s unique contribution to the philosophy of government, constitutionalism was by the mid-twentieth century widely regarded as an anachronism. Advocating separated powers and limited government, it was singularly unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation, giving the Constitution an unprecedented role in society. Once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity. Against Constitutionalism explains why this has happened and its far-reaching consequences. Spearheaded by a “rights revolution” that subjects governmental action to comprehensive review through abstract principles, judges acquire greatly enhanced power as oracles of the regime’s “invisible constitution.” Constitutionalism is refashioned as a theory maintaining that governmental authority rests not on collective will but on adherence to abstract standards of “public reason.” And across the world the variable practices of constitutional government have been reshaped by its precepts. Constitutionalism, Loughlin argues, now propagates the widespread belief that social progress is advanced not through politics, electoral majorities, and legislative action, but through innovative judicial interpretation. The rise of constitutionalism, commonly conflated with constitutional democracy, actually contributes to its degradation.
Constitutionalism and the Separation of Powers by M. J. C. Vile Pdf
Vile traces the history of the doctrine from its rise during the English Civil War, through its development in the eighteenth century -- through subsequent political thought and constitution-making in Britain, France, and the United States.
The Principles of Constitutionalism by N. W. Barber Pdf
In this follow-up volume to the critically acclaimed The Constitutional State, N. W. Barber explores how the principles of constitutionalism structure and influence successful states. Constitutionalism is not exclusively a mechanism to limit state powers. An attractive and satisfying account of constitutionalism, and, by derivation, of the state, can only be reached if the principles of constitutionalism are seen as interlocking parts of a broader doctrine. This holistic study of the relationship between the constitutional state and its central principles - sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society - casts light on long-standing debates over the meaning and implications of constitutionalism. The book provides a concise introduction to constitutionalism and a detailed account of the nature and implications of each of the principles in question. It concludes with an examination of the importance of constitutional principles to the work of judges, legislators, and others involved in the operation and creation of the constitution. The book is essential reading for those seeking a definitive account of constitutionalism and its benefits.
Author : Mark S. Harding Publisher : University of Toronto Press Page : 192 pages File Size : 42,7 Mb Release : 2022 Category : Law ISBN : 9781487528485