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Constitutional Law (constitutional + law)

Distribution by Scientific Domains
Law and Criminology62%
Humanities and Social Sciences37%

Selected Abstracts

Form and Substance in European Constitutional Law: The ,Social' Character of Indirect Effect

EUROPEAN LAW JOURNAL, Issue 4 2010
Leone Niglia
This article proposes to understand the constitutional discourse about individuals, rights and enforcement, as developed in the courtrooms, in relation to historic and contextual circumstances. It focuses on the interface between indirect effect and social policy, and argues that the creation of indirect effect has been integral to a judicial strategy centred on the key concern for sustaining the balance between market freedom and interventionism as achieved in the political process. [source]

Human Rights Guarantees, Constitutional Law, and The Military Commissions Act of 2006

PEACE & CHANGE, Issue 1 2008
Leonard Cutler
In the immediate aftermath of 9/11, the U.S. government in conjunction with NATO allies conducted a military campaign in Afghanistan that deposed the Taliban, destroyed Al-Qaida camps, and took 700 suspected terrorists into custody for internment and trial by military commission at Guantanamo Bay, Cuba. Six years later about 355 detainees remained in Guantanamo amid reports of persecution, ill treatment, mental and physical health breaches, rape, and torture. The United Nations Commission on Human Rights Working Group on Arbitrary Detention recommended closure of the Guantanamo Bay facility, as have many foreign governments and prominent current and former U.S. officials. For its part, the Bush administration has denied committing any acts of torture against the detainees and has insisted that its approach to the trial and punishment of the alleged terrorists is legal and consistent with the principles of international humanitarian laws. This article focuses on the Military Commissions Act of 2006 and the extent to which the President, Congress, and the United States Supreme Court have addressed human rights guarantees consistent with the rule of law and principles of justice. [source]

The Lisbon Judgment of the German Constitutional Court: A Court-Ordered Strengthening of the National Legislature in the EU

EUROPEAN LAW JOURNAL, Issue 5 2010
Philipp Kiiver
This article discusses the judgment of the German Constitutional Court on the constitutionality of the Treaty of Lisbon, concentrating on the court's insistence on the prerogatives of the national legislature. The court's insistence on prior national legislative ratification for the application of the simplified treaty revision procedure and of similar de facto amendment procedures, including the flexibility clause, is conservative but understandable from the perspective of German constitutional law. The prescription of prior bicameral ratification for the application of the flexibility clause makes the German government procedurally one of the most tightly controlled in the EU, although this would not be unique, and the effect of such control will depend on the cleavage between the government and the national legislature, especially the German upper chamber. None of the procedures insisted upon by the court are incompatible with EU Treaty law. Whether the new procedures will actually enhance the democratic legitimacy of EU measures in German perception will depend on the degree to which political parties in the national legislature will publicly politicise their stance on the decisions in question, allowing voters to hold them to account. All the court can do is prescribe opportunities where such politicisation may take place. [source]

Governing after the Rights Revolution

JOURNAL OF LAW AND SOCIETY, Issue 1 2000
Colin Harvey
In this paper I explore the relevance of neo-republican thinking for current debates in constitutional law. In particular, I am interested in how deliberative forms of law and democracy might be grounded in real-world institutional contexts. My thesis is that the neo-republican model, underpinned as it is by the values of equality, participation, and accountability, has both explanatory and critical potential when exploring the voices, spaces, and processes of constitutionalism. I test this argument with reference to constitutional change in Northern Ireland. It is evident that equality is the core value in the settlement reached but it is in the combination of values that the potential and tensions will arise in the future. The provisions of the Northern Ireland Act 1998 on equality are useful examples of how law might be shaped to include the voices of affected groups in the process of enforcing change in public administration. Law's role in this process is, however, more problematic than is often assumed. In this, and in other aspects of the settlement, there are lessons for others who are presently reflecting on the constitutional future in the new devolutionary contexts. [source]

Courtroom to Classroom: Justice Harlan's Lectures at George Washington University Law School

JOURNAL OF SUPREME COURT HISTORY, Issue 3 2005
ANDREW NOVAK
John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law. [source]

The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America

JOURNAL OF SUPREME COURT HISTORY, Issue 1 2003
Sarah Barringer Gordon
My research into the "Mormon Question" has blurred disciplinary boundaries, demonstrating that legal history occurs outside the confines of law books, out in the world of popular culture, political cartooning, and sermonizing, and even in outbreaks of violence. This article is designed to illustrate how an entire body of constitutional law was made in opposition to the marital and sexual arrangements of Mormons in the Utah Territory in the nineteenth century. [source]

Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention

LEGAL STUDIES, Issue 3 2002
Mark Elliott
Although the constitutional reform programme undertaken by the Blair administration is formally consistent with the doctrine of parliamentary sovereignty, it is clear that the human rights and devolution legislation, in particular, significantly alter the political and constitutional environment within which Parliament's legislative powers are exercised. This paper considers whether it is meaningfiul, within this new constitutional setting, to adhere to the traditional notion of sovereignty. It is argued that the disparity between a Parliament whose powers are formally unlimited yet increasingly constrained, in political terms, by norms based on fundamental rights and devolved governance may be accommodated, in the short term, by means of constitutional conventions which trace the constitutionally acceptable limits of legislative action by Parliament. However, following examination of the nature of convention and its relationship with law and constitutional principle, it is argued that the possibility arises, in the long term, that conventional limits upon legislative freedom may ultimately evolve into legal limiis, thus ensuring that the fundamental values embraced by the legal order are acknowledged not merely in pragmatic or conventional terms, but as a matter of constitutional law. [source]

Judicial Hegemony: Dworkin's Freedom's Law and the Spectrum of Constitutional Democracies

RATIO JURIS, Issue 3 2002
Brian Donohue
Ronald Dworkin's Freedom's Law offers a solution to a thorny problem in American constitutional law. He argues that the authority of the American Supreme Court to make the final determination on constitutional questions is consistent with democratic principles. In this paper, I try to show that his solution is unsatisfactory because it permits the possibility of a judicial usurpation of authority that is inconsistent with his characterization of democratic principles. Freedom's Law is also a bold attempt to offer prescriptions for constitutional democracies generally. By drawing a distinction between two concepts of authority, I object to this effort. I argue that Dworkin's analysis assumes the operation of a conception of authority that I label the pyramid model. I also introduce a bipolar model of authority and try to show its application to the Canadian constitutional scheme. On this basis, I conclude that his prescriptions are relevant only for a portion of the spectrum of constitutional democracies. [source]