- The Framework Model and Constitutional Interpretation, Jack M. Balkin, Posted on May 20, 2015Constitution is perceived as a basic framework that permits and facilitates political development. Its development need not be only through formal amendments, but in constitutional practice as well. It is argued that “[c]onstitutional construction is a dialectical process involving all branches of government as well as civil society, which together build out the constitution over time. The framework is unfinished and undergoes a continuous process of construction by different agents. “2. Deference and Due Process, Adrian Vermeule, Posted on May 27, 2015Procedural due process is no more a judicial enterprise. The crux of the argument is that “the courts for their part often defer, explicitly or implicitly, to agencies’ due process decisions.”Author renders how extra constitutional measures make amendment tougher than US constitution. The question raised is how these extra textual sources affect democracy and undermines the ‘purpose of writtenness’.http://ssrn.com/abstract=2601646Technically US constitution have no limitation on amending any part but the author argues that “if the Constitution is to remain internally coherent, the informal unamendability of the First Amendment’s democratic rights may be a condition precedent to the Constitution’s promise of robust democracy.” It is further said that unamedability “is more effective as a declaration of importance than as a referent for judicial enforceability”5. Canadian Constitutional Identities, Eric M. Adams , Posted on May 19, 2015http://ssrn.com/abstract=2608150This paper is a look into constitutional history of Canada and its quest for identity.6. Eternal Territory? The Crimean Crisis and Ukraine's Territorial Integrity as an UnamendablePrinciple, Yaniv Roznai , Silvia Suteu , Posted on May 5, 2015http://ssrn.com/abstract=2602762“This article reflects on the protection of territorial integrity in the Ukrainian constitution, and especially within its provision of unamendability, against the backdrop of the 2014 Crimean crisis.”7. On Resilience of Constitutions. What Makes Constitutions Resistant to External Shocks?, Xenophon Contiades , Alkmene Fotiadou , Posted on March 7, 2015http://ssrn.com/abstract=2603164The paper examines how constitutions respond to financial crisis and similar external shocks. Explores the contents in constitution that makes it resilient.8. The Architecture of Constitutional Time, Richard Alexander Izquierdo , May 1, 2015This is a reflection and variance to Bruce Ackerman’s ‘We the People’ series.9. Conditionality as Opposed to Severability, Tom Campbell , Posted on May 20, 2015The paper carries a part of debate on the fate of statute held partially unconstitutional. Author’s argument is that rest of the statute also should go.10. Constitutional Limits to Paternalistic Nudging: A Proportionality Assessment, Anne Van Aaken, Posted on May 14, 201511. Foreign Precedent in State Constitutional Interpretation, Jonathan L. Marshfield , Posted on May 26, 201512. Centralising Authority: Comparing Executive Power in India and Sri Lanka, Rehan Abeyratne, Posted on May 5, 201513. Negotiating Federalism and the Structural Constitution: Navigating the Separation of Powers Both Vertically and Horizontally (A Response to Aziz Huq), Erin Ryan, Posted on May 6, 2015.http://ssrn.com/abstract=260258114. Religion and Constitutionalism: Oscillations Along a Continuum, Paul T. Babie , Posted on May 13, 2015“This review article analyses three books published between 2010 and 2013 and explores the ways in which a nation, secular or otherwise, can deal with religion within its borders, both legally and socially.”15. Parliamentary Sovereignty as a Barrier to a Treaty-Based Partnership, Lydia O'Hagan, Posted on May 13, 201516. Public Involvement and Constitutional Theocracy in Iran, Shabnam Haji , Posted on May 6, 2015.17. The Constitution of the Netherlands at 200: Adaptive Capacity and Constitutional Rigidity, Reijer Passchier , Posted on May 18, 2015A constitution aged two centuries is a good guide to other nations to learn how it withstood the test of time.18. Equality Constitutional Adjudication in South Africa, Anne Smith, Posted on 25 May, 201519. We the People? – Theorising Constitutional Democratic Legitimacy to Reflect on and Enrich New Zealand’s Constitution, Georgia Lockie , Posted on May 13, 2015Major theme of the paper is democratic legitimacy and how it enriches the constitution. Uses Bruce Ackerman’s “We the People” as foundation for enquiry.20. Institutional Developments, Academic Debates and Legal Practices on the Constitutional Review in China: 2000–2013, X.Yang Cheng , Posted on May 15, 2014Judicial review in China has its own meaning and content. National People’s Congress Review Model has been established since the 1982 Constitution, which is known for being inactive. The article explores a way to reform the review system within limits permitted.21. Legislative Review Under Article 14, Tarunabh Khaitan , May 12, 2015This is a chapter in the Oxford Handbook of Indian Constitutional Law. Explains two existing doctrines that hold the field of legislative review in India; the doctrine of classification and the doctrine of arbitrariness. The central argument is as follows “(a) the classification test (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules (whether or not legislative in character); (b) it is a limited and highly formalistic test applied deferentially; (c) the arbitrariness test is really a test of unreasonableness of measures which do not entail comparison (hence labelled non-comparative unreasonableness); (d) its supposed connection with the right to equality is based on a conceptual misunderstanding of the requirements of the rule of law; and (e) courts are unlikely to apply it to legislative review (in the actor-sensitive sense). The way forward is to beef up the classification doctrine to realise its true potential, and abandon the arbitrariness doctrine with respect to actor-sensitive legislative review.”22. HIV and the South African Constitution: Claiming Rights to Combat an Epidemic, Timothy Fish Hodgson , Mark Heywood , Posted on May 25, 201523. Civil Society and Constitutional Reform in Africa: A Case of Ghana, Mawuse Hor Vormawor , Raymond AtugubaThis is an attempt to consolidate the contribution civil society has made to the making and reform of democracy and constitution in Ghana. The connect between the civil society and the process has not been smooth and is assessed to be suboptimal.
Showing posts with label Articles - SSRN Constitutional Law. Show all posts
Showing posts with label Articles - SSRN Constitutional Law. Show all posts
Wednesday, June 3, 2015
Assortment of SSRN Articles on Constitutional Law - May, 2015
Saturday, May 2, 2015
Assortment of SSRN articles on Constitutional Law in the month of April
1. Do Laws Have a Constitutional Shelf
Life? By Alli Orr Larsen, Posted on April 20, 2015.
An interesting question is posed about the
future of law that was relevant and rational when written but lost its value as
time and circumstances change by. Relying on a decided case, it is assessed
whether constitution gives the leeway to hold a law as expired, which was
constitutional when enacted.
2. Free Exercise by Moonlight, By Marc O. DeGirolami , Posted on March 30, 2015,
Issue of religious accommodation and free
exercise is the discussion in the background of two decided cases. Judicial
decisions are analyzed reflecting its impact on later judgments and current day
socio-political context.
3. New Institutional Mechanisms for
Making Constitutional Law, By Mark Tushnet , Posted on April 2, 2015.
This paper searches new modes of
constitution making beyond the traditional Constituent Assemblies and
Interpretation.
4. Constitutional Amendment by Stealth,
By Richard Albert , Posted on April 2, 2015.
In the context of Canada, the author argues
a method of constitutional amendment that is calculated and surreptitious. This
arguably is through a process of consciously creating new practices which
successors are forced to follow that eventually settles into constitutional
conventions. This leads to amend constitution without amending the text through
established procedure.
5. Constitutional Law: Critical and
Comparative, By Mark Tushnet, Posted on April 4, 2015.
An introduction essay to a volume of
studies by Latin American scholars of constitutional law and theory. The
scholars are reflecting on Tushnet’s works.
6. Elite Institutionalism and Judicial
Assertiveness in the Supreme Court of India, By Manoj Mate, Posted on April 19, 2015.
“This article examines judicial challenges
to central government power in the Supreme Court of India by analyzing activism
and assertiveness in fundamental rights decisions from 1977 to 2007. Based on
field research and contextual analysis of politically significant decisions,
the article traces patterns of judicial assertiveness in politically
significant fundamental rights decisions.”
7. Enabling Resistance: How Courts
Facilitate Departures from the Law and Why This May Not Be a Bad Thing, By Adam Shinar , Posted on, April 1, 2015.
The paper looks at constitutional
interpretation by administrative officers. Argues that departing from strict
letter of law for meeting certain contingencies is not all that bad.
8. The Supreme Court’s Power of
Judicial Review in Bangladesh: A Critical Evaluation, By Kawser Ahmed , April 16, 2015.
9. Global Standards of Constitutional
Law: Epistemology and Methodology, By Maxime St-Hilaire , Posted on April 24,
2015.
Author is on a pursuit to identify ‘global
standards for constitutional law’. The globalization of constitutional law has
oriented development of constitutional law towards best practices and setting
standards. Author calls this phase as “second order of legal positivity”.
10. Ethnic Rights and Constitutional
Change: The Constitutional Recognition of Ethnic Nationalities in Myanmar/Burma,
By Melissa Crouch , Posted on March 30, 2015.
11. But Names Will Never Hurt Me:
Extending Hate Speech Legislation to Protect Gender and Sexual Minorities in
New Zealand, By Vanessa Haggie, Posted on April 30, 2015.
The need to harmonize censoring of
expression to curb hate speech is the highlight of the paper.
12. Same Sex Marriage in Hong Kong: The
Case for a Constitutional Right, By Michael Ramsden and Luke Marsh , Posted on April 3, 2015.
Sunday, November 27, 2011
SSRN: Weekly Round up of Articles on Constitutional Law
Separation of Powers Under the American Legal System and Islamic Law
Indiana University, School of Law, Indianapolis; Alexandria University - Faculty of Law
Abstract
Separation of Powers is well-established principle in all modern-democratic legal systems. In the abstract, this principle is a constitutional principle in which every state is eager to draw its features in its own constitution.
The Separation of Powers is a term that invented by the French political philosopher Baron de Montesquieu after being first introduced by the ancient Greeks and developed by the Roman Empire.
The principle is a mere attempt to a draft a model of governance that reinforces the democratic aspects in the state by dividing the state into three branches “executive, legislature, and judiciary”. The principle is to arm each branch with some tools whereby each branch can check the powers of the other and guarantee that no branch will intervene in the functions of the other.
In this paper, the author expound briefly the borders of this principle in both the American Legal System and Islamic Law, in an attempt to shed light over the emergence of this principle and the mechanism that shapes its working field in the two systems.
Governance, Accountability and the Market in Hungary's New Fundamental Law
University of Hull - School of Law
Abstract
In 2010 and 2011, Hungary enjoyed the privilege of drafting a new constitution in which the complexities of modern Hungarian society, the demands concerning the regulation of the economy and society, the new arrangements for the use of public power and accountability, and the constitutional responses to the challenges of European and global governance could be expressed. The declared intention was to create a constitution which would conclude the 20 years of transition, and provide the fundamental political, legal and social arrangements for a fresh start. In this process, the drafters had the advantage to consider the wealth of knowledge and experience available in global and European constitutionalism, and enjoyed the political support of a stable majority government. The conditions were ideal for a conceptually open, transparent and deliberative constitution making process. This, however, was never realized owing to the time constraints dictated by a government having set its mind to overhaul the complete constitutional system for which the new constitution would provide the foundations.
The new Fundamental Law and its disappointing provisions concerning the system of governance, accountability and the relationship between the state and the market provide an excellent opportunity to discuss the conceptual limitations of constitutions and the etymological boundaries of constitutional texts. 'Constitutions are replete with gaps, silences, and abeyances' and in developing rules and institutions mistake a part of the political, social and economic order for the whole. The main question is whether the 'fundamental mismatch' between constitutions and newer paradigms of governance and accountability could be overcome and these paradigms could be expressed in the constitutional text.
Entrenching Provisions in Australia: Are They Effective?
University of New South Wales (UNSW) - School of Banking and Finance; Tilburg University - European Banking Center
Abstract
The author seeks to analyze the Australian position on whether one ‘legislature can bind a subsequent legislature’ by passing entrenching provisions. The focus is on federal jurisdiction. Entrenching provisions (EPs) purport to insulate a statute from subsequent legislative action. They may do this by making amendments/repeals conditional on either achieving a supermajority in parliament (a super-majority EP, or SEP) and/or a pre-requisite such as a time-limit being met (a pre-requisite EP, or PEP). It is argued that: First, SEPs are invalid as contrary to Constitution Section 23 and Section 40. Second, PEPs are valid if they are ‘with respect to’ an enumerated Section 51 power. This is met if they are for the purpose of achieving the Section 51 power. This imports notions of the PEP being ‘reasonably proportionate’ to the exercise of the Section 51 power; and thus, excludes ‘extreme’ types of entrenchment, such as indefinite entrenchment. Third, there is no other implicit constitutional bar to EPs.
The Senate and the Constitution
University of California, Davis - School of Law
Yale Law Journal, Vol. 97, No. 6, p. 1111, May 1988
Abstract
The United States Senate has largely been ignored in legal literature. No pieces have provided a systematic analysis of the Senate’s place and function in the constitutional scheme. The Senate plays a critical role both in constitutional interpretation and societal value pronouncement. In considering the Senate’s role in these areas, this essay considers four constitutional processes: legislation, impeachment, appointment and amendment. In considering the Senate’s role in these four processes, this essay will also reveal the special policy functions it was intended to perform.
Abstract
This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. The chapter considers ‘transformative constitutionalism’ and its ability to fulfill the ambitions of setting out to establish a society based on social justice and fundamental human rights. The South African jurisprudence after the constitutionalization of human rights, in particular ESR, has been praised by the international community. Nevertheless, the central tenets of the chapter are two cautionary findings. First, the analysis cautions against using constitutional change alone to enhance the rule of law after conflict or oppressive rule. Although constitutional adjudication in South Africa has had positive outcomes, modifying the place accorded to international law in the domestic legal system is largely insufficient for the realization of ESR and the ‘thick’ conception of the rule of law envisioned by the drafters of the 1996 Constitution. Second, the chapter finds that a domestic belief in the relevance of international and national legal norms was decisive in the South African experience. The constitutional empowerment of domestic courts to apply international legal principles would not, by itself, explain the practice of national courts insisting on the implementation of rights recognized in international law. Moreover, a number of unique factors related to the actors and process leading to the constitutional transformation in South Africa contribute to explain the remarkable transition towards an international law-friendly constitution. While the empowerment of domestic courts in South Africa provides lessons for other states, those lessons are primarily ones regarding limitations, complexities, and context-specific issues that arise in the empowerment of domestic courts to apply international legal principles in situations of transition.
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