Constitutionalism

Papers and Books

Nicholas Aroney (2009). The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution. Cambridge University Press. By analysing original sources and evaluating conceptual frameworks, this book discusses the idea proclaimed in the Preamble to the Constitution that Australia is a federal commonwealth. Taking careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, the author shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution (…)
R. J. B. (1959). The Federal Convention and the Formation of the Union of the American States. Review of Metaphysics 12 (4):669-669. R. Bellamy, Political Constitutionalism : A Republican Defence of the Constitutionality of Democracy.
Richard Bellamy (2006). The European Constitution is Dead, Long Live European Constitutionalism. Constellations 13 (2):181-189. James Bohman. Constitution Making and Institutional Innovation: The European Union and Multisited Federalism. European Journal of Political Theory.
Corey Brettschneider (2005). Balancing Procedures and Outcomes Within Democratic Theory: Corey Values and Judicial Review. Political Studies 53:423-451. Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theoristsÂ’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralistsÂ’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (…)
Thom Brooks (2004). A Defence of Jury Nullification. Res Publica 10 (4):401-423.In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds.
Grainne De Burca (2006). The European Constitution Project After the Referenda. Constellations 13 (2):205-217. H. G. Callaway (2015). Review of Lee (2011) From House of Lords to Supreme Court. [REVIEW] Law and Politics Book Review 25 (2):22-26. The papers collected in the present volume arose from a 2009 seminar organized by the Society of Legal Scholars and the University of Birmingham, and convened at the Law SocietyÂ’s Hall in Bristol, England. The seminar, Â“Judges and Jurists: Reflections on the House of Lords,Â” commemorated the centenary of the Society; and it chiefly focused on the transition from the House of Lords, as the U.K.Â’s court of final appeals, to the prospects of the newly instituted United Kingdom Supreme Court.
H. G. Callaway (2011). Review of Alison L. LaCroix Ideological Origins of American Federalism. [REVIEW] Law and Politics Book Review 21 (10):619-627.
Alison L. LaCroix is Assistant Professor of Law at the University of Chicago Law School, where she specializes in legal history, federalism, constitutional law and questions of jurisdiction. She has written a fine, scholarly volume on the intellectual origins of American federalism. LaCroix holds the JD degree (Yale, 1999) and a Ph.D. in history (Harvard, 2007). According to the author, to fully understand the origins of American federalism, we must look beyond the Constitutional Convention of 1787 and range over the (…)
Claudio Corradetti (2006). Human Rigths in Europe. Theory and Practice. XL.
Kristian Skagen Ekeli (2007). Green Constitutionalism: The Constitutional Protection of Future Generations. Ratio Juris 20 (3):378-401.
Kristian Skagen Ekeli (2007). How Difficult Should It Be to Amend Constitutional Laws? Scandinavian Studies in Law 52:79-101. The purpose of this paper is to consider some aspects of the question of how difficult it should be to amend or change constitutional laws through formal amendment procedures. The point of departure of my discussion is an amendment procedure that has recently been suggested by the prominent legal and political philosopher Bruce Ackerman. He defends a three-step amendment procedure – where a re-elected president is authorised to propose amendments that must thereafter be approved first by a two-thirds majority of (…)
NicolÃ¡s Figueroa GarcÃa-Herreros (2012). Counter-Hegemonic Constitutionalism: The Case of Colombia. Constellations 19 (2):235-247.
Dieter Grimm (2005). The Constitution in the Process of Denationalization. Constellations 12 (4):447-463.
Iseult Honohan (2009). Political Constitutionalism. Contemporary Political Theory 8 (3):371.
Jennet Kirkpatrick (2012). Democracy on the Lam: Crisis, Constitutionalism and Extra-Legality. Contemporary Political Theory 11 (3):264.
Jan Kudrna (2010). Cancellation of Early Elections by the Constitutional Court of the Czech Republic: Beginning of a New Concept of Â“Protection of ConstitutionalityÂ”. Jurisprudence 122 (4):43-70. The ruling of the Constitutional Court of 10 September 2009 which repealed the proclaimed early elections to the Chamber of Deputies because of their alleged unconstitutionality fully manifests unjustifiability of the interference by the Constitutional Court of the Czech Republic. The decision directly interfered with the process of democratic re-establishment of the Chamber of Deputies. At the same time, the Court’s intervention was only made possible by violating a number of constitutionally prescribed rules.
Justine Lacroix (2010). Review Article: Come o Liberals, Try Harder Â… Glyn Morgan The Idea of a European Superstate: Public Justification and European Integration. Princeton, Princeton University Press, 2005. Jan-Werner MÃ¼ller Constitutional Patriotism. Princeton, Princeton University Press, 2007. [REVIEW] European Journal of Political Theory 9 (2):227-234.
Mary Kate McGowan & Ishani Maitra (2009). On Racist Hate Speech and the Scope of a Free Speech Principle. Canadian Journal of Law and Jurisprudence 23 (2):343-372. In this paper, we argue that to properly understand our commitment to a principle of free speech, we must pay attention to what should count as speech for the purposes of such a principle. We defend the view that ‘speechÂ’ here should be a technical term, with something other than its ordinary sense. We then offer a partial characterization of this technical sense. We contrast our view with some influential views about free speech , and show that our view has (…)
Thaddeus Metz (2013). The Desirability of a Property Clause: Michelman’s Defence of Liberalism. Stellenbosch Law Review 24 (2):312-28. I address Frank MichelmanÂ’s recent attempts to dispel the notion that there are deep tensions between a liberal approach to constitution making and a resolute commitment to fighting poverty, i.e., to holding what he calls ‘social liberalismÂ’. He focuses on the prima facie tension between anti-poverty struggle on the part of government and the existence of a property clause in a constitution, a tension that several commentators in South Africa have contended requires removing that clause from its Constitution.
Thaddeus Metz (2012). Animal Rights and the Interpretation of the South African Constitution. In David Bilchitz & Stu Woolman (eds.), Is This Seat Taken? Conversations at the Bar, the Bench and the Academy. Pretoria University Law Press 209-219. In this chapter, a reprinted article from Southern African Public Law (2010), I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon (…)
Markus Patberg (2013). Constituent Power Beyond the State: An Emerging Debate in International Political Theory. Millennium 42 (1):224-238.
Carlos AndrÃ©s PÃ©rez-GarzÃ³n (2015). El trasplante de los principios de justicia de John Rawls en la ConstituciÃ³n colombiana de 1991 y su aplicaciÃ³n por la Corte Constitucional en la sentencia T-406 de 1992. Revista Justicia y Derecho 1 (2):8-19. This short essay tries to answer the question: were the John RawlsÂ’ principles of justice transplanted into the Colombian Constitution of 1991, and if it is so, have they ever been applied by a judge in Colombia? The answer is affirmative: both principles have been transplanted into the 13TH article of the Constitution, and the second one has been used by the Constitutional Court in the judgment T-406 of 1992 in order to protect the disadvantagedÂ’s social rights through the acciÃ³n (…)
Carlos AndrÃ©s PÃ©rez-GarzÃ³n (2015). The Transplant of John Rawls’ Principles of Justice Into the Colombian Constitution of 1991 and Their Influence to Overcome the Traditional Legal Formalism in Colombia. Revista Justicia y Derecho 1 (2):20-26. This essay wants to show that the main elements of the John RawlsÂ’ principles of justice were transplanted into the Colombian Constitution of 1991, and that they have been used by the Constitutional Court, especially the second principle, as an instrument to overcome the legal formalism traditionally practiced by the Colombian Judiciary, and to protect more effectively both fundamental and social rights.
David Resnick (1984). Locke and the Rejection of the Ancient Constitution. Political Theory 12 (1):97-114.
Re’em Segev (2010). Is the Criminal Law (So) Special? Comments on Douglas HusakÂ’s Theory of Criminalization. Jerusalem Review of Legal Studies 1 (1):3-20. This is Re’em Segev’s contribution to the symposium on Douglas Husak’s book “Overcriminalization.”.
Gary Shiffman (2002). Construing Disagreement: Consensus and Invective in “Constitutional” Debate. Political Theory 30 (2):175-203. The danger of disturbing the public tranquillity by interesting too strongly the public passions is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Â—James Madison, Federalist 49At a time like this, scorching irony, not convincing argument, is needed.Â—Frederick Douglass, Â“What to the Slave is the 4th of July?Â”.
Andras Szigeti (2010). Constitutionalism and Value Theory. In Andras Sajo & Renata Uitz (eds.), Constitutional Topography: Values and Constitutions. ELEVEN INTERNATIONAL PUBLISHING. The theory and practice of constitutionalism is tightly interwoven with references and appeals to values. However, these references and appeals frequently remain undertheorized and are seldom connected directly to philosophical theories of value. This chapter outlines some ways in which such connections might be established.
Malcolm Thorburn (2008). Justifications, Powers, and Authority. Yale Law Journal 117:1070. Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal lawÂ’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post (…)
James Tully (1995). Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge University Press. Constitutionalism in an Age of Diversity James Tully. these ambassadors from Haida Gwaii conciliate the goods which appear irreconcilable to us? To discover the answer, and learn our way around on this strange common ground, we need to …
Mark Warren (1989). Liberal Constitutionalism as Ideology: Marx and Habermas. Political Theory 17 (4):511-534.
Jacob Weinrib (2015). Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law. Cambridge University Press. In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (…)

Concept of Constitutionalism

Note: explore also the meaning of this legal term in the American Ecyclopedia of Law.

Chinese Constitutionalism (Five-Power Constitution)

In relation to the chinese constitutionalism (five-power constitution) and constitutional law, Ernest Caldwell[1] made the following observation: Studies of modern constitutions and constitutional structures are invariably predicated upon the common theory that governments exercise three primary forms of legitimate power: executive, legislative, and judicial. Scholars from Montesquieu to the present have argued that separating these powers into distinct branches of government and establishing various forms of procedural mechanisms to constrain the exercise of these powers best ensures that government power is exercised efficiently and without potential of infringing upon the rights and freedoms of (…)