Products related to Constitutional:
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Against Constitutional Originalism : A Historical Critique
A detailed and compelling examination of how the legal theory of originalism ignores and distorts the very constitutional history from which it derives interpretive authority “What are the chances that, in 2024, a new book could fundamentally reorient how we understand America’s founding?Jonathan Gienapp . . . has written such a book. . . . You read it, and you get vertigo. . . . Gienapp’s book comes as a thunderclap.”—Cass Sunstein, Washington Post Constitutional originalism stakes law to history.The theory’s core tenet—that the U.S. Constitution should be interpreted according to its original meaning—has us decide questions of modern constitutional law by consulting the distant constitutional past.Yet originalist engagement with history is often deeply problematic. And now that a majority of justices on the U.S. Supreme Court champion originalism, the task of scrutinizing originalists’ use and abuse of history has never been more urgent. In this comprehensive and novel critique of originalism, Jonathan Gienapp targets originalists’ unspoken assumptions about the Constitution and its history. Originalists are committed to recovering the Constitution laid down at the American Founding, yet they often assume that the Constitution is fundamentally modern.Rather than recovering the original Constitution, they project their own understandings onto it, assuming that eighteenth-century constitutional thinking was no different than their own.They take for granted what it meant to write a constitution down, what law was, how it worked, and where it came from, and how a constitution’s meaning was fixed.In the process, they erase the Constitution that eighteenth-century Americans in fact created.By understanding how originalism fails, we can better understand the Constitution that we have.
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Historical Gloss and Foreign Affairs : Constitutional Authority in Practice
A new interpretation of the constitutional law of foreign affairs, as it has been developed throughout its history by presidents and by Congress. In the more than 230 years since the Constitution took effect, the constitutional law governing the conduct of foreign affairs has evolved significantly.But that evolution did not come through formal amendments or Supreme Court rulings.Rather, the law has been defined by the practices of Congress and the executive branch, also known as “historical gloss.”Curtis A.Bradley documents this process in action. He shows that expansions in presidential power over foreign affairs have often been justified by reference to historical gloss, but that Congress has not merely stepped aside.Belying conventional accounts of the “imperial presidency” in foreign affairs, Congress has also benefited from gloss, claiming powers for itself in the international arena not clearly addressed in the constitutional text and disrupting claims of exclusive presidential authority. Historical Gloss and Foreign Affairs proposes a constitutional theory that can make sense of these legal changes.In contrast, originalist theories of constitutional interpretation often ignore influential post-Founding developments, while nonoriginalist theories tend to focus on judicial decisions rather than the actions and reasoning of Congress and the executive branch.Moreover, the constitutional theories that do focus on practice have typically emphasized changes at particular moments in time.What we see in the constitutional law of foreign affairs, however, is the long-term accumulation of nonjudicial precedents that is characteristic of historical gloss.With gloss confirmed as a prime mover in the development of foreign affairs law, we can begin to recognize its broader status as an important and longstanding form of constitutional reasoning.
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Constitutional Public Reason
Public reason, which urges that only laws based on principles reasonably agreeable to all those bound by them are legitimate, has rarely been applied to constitutional law, and never in a comparative way.This book aspires to fill that gap, by studying the use of public reason in different constitutional systems.In doing so, it studies public reason both as a normative idea - as a principle postulated for democratic constitutionalism, and as a descriptive account - as helping to understand many important doctrines in constitutional adjudication of some leading constitutional courts around the world, and also in the supranational sphere.Constitutional Public Reason questions the performance of leading 'exemplars of public reasons', including the top courts of the United States, India, Canada, Australia, Germany, and South Africa, as well as the European Court of Human Rights.It also attempts to show how this performance can be improved in fields such as freedom of expression, non-establishment of religion, and anti-discrimination law.Ultimately, it finds that the best resonance between the ideal of public reason and constitutional interpretation is found in doctrines that locate the illegitimacy of laws in the wrongful motives (or purposes) pursued by legislators.Scrutinising motives is often as important as scrutinising consequences.
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Beginning Constitutional Law
Whether you’re new to higher education, coming to legal study for the first time or just wondering what Constitutional Law is all about, Beginning Constitutional Law is the ideal introduction to help you hit the ground running.Adopting a clear and simple approach with legal vocabulary explained in a detailed glossary avaliable on the companion website, Nick Howard breaks the subject of constitutional law down using practical everyday examples to make it understandable for anyone, whatever their background.Diagrams and flowcharts simplify complex issues, important cases are identified and explained, and on-the- spot questions help you recognise potential issues or debates within the law so that you can contribute in classes with confidence. This second edition has been updated to keep up to date with developments both before and after the 2015 General Election as well as ongoing proposals for reform, including:• The referendum on independence for Scotland, increased devolved powers and the continued threat of the break-up of the Union. • Proposals to repeal the Human Rights Act 1998 and replace it with a British Bill of Rights. • The in/out referendum on EU membership. • Reform of the role and composition of the House of Lords. Beginning Constitutional Law is an ideal first introduction to the subject for LLB, GDL or ILEX and especially international students, those enrolled on distance learning courses or on other degree programmes.
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Is compulsory education constitutional?
Compulsory education is constitutional in the United States. The Supreme Court ruled in 1925 in the case of Pierce v. Society of Sisters that parents have the right to choose the type of education their children receive, but the state also has the authority to require children to attend school. This decision upheld the constitutionality of compulsory education laws, as long as parents have the option to choose between public and private schools. Additionally, the 10th Amendment of the U.S. Constitution gives states the authority to regulate education within their borders, including mandating compulsory education.
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Is a constitutional monarchy unconstitutional?
No, a constitutional monarchy is not unconstitutional. In a constitutional monarchy, the monarch's powers are limited by a constitution, which outlines the monarch's role and responsibilities within the government. This system allows for a balance of power between the monarch and other branches of government, ensuring that the monarchy operates within the framework of the constitution.
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What are the constitutional organs?
The constitutional organs are the key institutions established by a country's constitution to carry out the functions of government. These organs typically include the executive branch, which is responsible for implementing and enforcing laws; the legislative branch, which is responsible for making laws; and the judicial branch, which is responsible for interpreting laws and ensuring their constitutionality. In some countries, there may also be additional constitutional organs such as an independent electoral commission or a constitutional court. These organs work together to ensure the proper functioning of a country's government and the protection of its citizens' rights.
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Was the Socialist Law constitutional?
The Socialist Law, implemented in Germany in 1878, was controversial and faced criticism for its restrictions on socialist activities and political freedoms. While it was passed by the German Reichstag and upheld by the courts, many argued that it violated constitutional principles such as freedom of speech and association. Ultimately, the law was allowed to expire in 1890, suggesting that its constitutionality was questionable.
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EU Constitutional Law
This title is a comprehensive textbook of EU constitutional law, setting out the structure, values, procedures, and policies of the European Union.It is a first point of reference for issues of EU constitutional law.The book encompasses six major parts. The first part addresses the formation history of the European Union, the treaties, the accessions, and the withdrawal of the United Kingdom.The second part covers the competences of the European Union.It contains an extensive analysis of the key constitutional principles governing the exercise of competences by the Union and the balance of power between the Union and its Member States, followed by an in-depth anaylsis of EU citizenship and the four freedoms, followed by an overview of the main internal and external policy domains.The third part addresses the role and workings of the various institutions (European Council, Council, European Parliament, Commission, European Court of Justice, and European Central Bank), the position of the Member States of the Union, and various other institutional matters.Part four explores the various decision-making processes, addressing not only the legislative and executive decision-making, but also the budget, CFSP, and external action.The fifth part looks at the legal instruments and the position of EU law in the EU and national legal orders, with an attention to the key principles of primary and direct effect, and the role of fundamental rights and the Charter of Fundamental Rights.The final part sets out the complete and coherent system of judicial protection in the European Union, offering an overview of the various courses of action before the EU courts and in the national legal orders to enforce EU law or to obtain judicial protection.
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European Constitutional Law
European Constitutional Law uses a distinctive two-part structure to examine the legal foundations and powers of the European Union.Written in a uniquely engaging style, and full of logical explanations and illuminating analyses, Schütze provides students with the means for a sophisticated study of the subject.Extensive diagrams and tables clarify key concepts and processes; and the book's critical approach ensures awareness of the intricacies of European constitutional law.A practical appendix and the author's companion webpage help students to find and read primary and secondary legal sources. Digital formats and resourcesThe third edition is available for students and institutions to purchase in a variety of formats.The e-book offers a mobile experience and convenient access, along with functionality tools, navigation features, and links that offer extra learning support: www.oxfordtextbooks.co.uk/ebooks.
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Poland's Constitutional Breakdown
Since 2015, Poland's populist Law and Justice Party (PiS) has been dismantling the major checks and balances of the Polish state and subordinating the courts, the civil service, and the media to the will of the executive.Political rights have been radically restricted, and the Party has captured the entire state apparatus.The speed and depth of these antidemocratic movements took many observers by surprise: until now, Poland was widely regarded as an example of a successful transitional democracy.Poland's anti-constitutional breakdown poses three questions that this book sets out to answer: What, exactly, has happened since 2015?Why did it happen? And what are the prospects for a return to liberal democracy?These answers are formulated against a backdrop of current worldwide trends towards populism, authoritarianism, and what is sometimes called 'illiberal democracy'.As this book argues, the Polish variant of 'illiberal democracy' is an oxymoron.By undermining the separation of powers, the PiS concentrates all power in its own hands, rendering any democratic accountability illusory.There is, however, no inevitability in these anti-democratic trends: this book considers a number of possible remedies and sources of hope, including intervention by the European Union.
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Peace, Discontent and Constitutional Law : Challenges to Constitutional Order and Democracy
This book offers a multi-discursive analysis of the constitutional foundations for peaceful coexistence, the constitutional background for discontent and the impact of discontent, and the consequences of conflict and revolution on the constitutional order of a democratic society which may lead to its implosion.It explores the capacity of the constitutional order to serve as a reliable framework for peaceful co-existence while allowing for reasonable and legitimate discontent.It outlines the main factors contributing to rising pressure on constitutional order which may produce an implosion of constitutionalism and constitutional democracy as we have come to know it.The collection presents a wide range of views on the ongoing implosion of the liberal-democratic constitutional consensus which predetermined the constitutional axiology, the institutional design, the constitutional mythology and the functioning of the constitutional orders since the last decades of the 20th century.The constitutional perspective is supplemented with perspectives from financial, EU, labour and social security law, administrative law, migration and religious law.Liberal viewpoints encounter radical democratic and critical legal viewpoints.The work thus allows for a plurality of viewpoints, theoretical preferences and thematic discourses offering a pluralist scientific account of the key challenges to peaceful coexistence within the current constitutional framework. The book provides a valuable resource for academics, researchers and policymakers working in the areas of constitutional law and politics.
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What makes a constitutional state?
A constitutional state is characterized by a framework of laws and principles that establish the powers, duties, and limitations of government institutions. It is governed by a constitution that outlines the rights and freedoms of individuals, the separation of powers, and the rule of law. In a constitutional state, the government is bound by the constitution and must operate within its legal constraints, ensuring accountability and protecting the rights of its citizens. Additionally, a constitutional state typically includes mechanisms for judicial review to uphold the constitution and resolve disputes.
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Is the AfD anti-constitutional?
The AfD (Alternative for Germany) has faced criticism for some of its policies and statements that are seen as anti-constitutional. For example, the party has been accused of promoting xenophobic and nationalist views that go against the principles of equality and non-discrimination enshrined in the German constitution. However, the party itself has not been banned or declared unconstitutional by the German authorities. Ultimately, whether the AfD is considered anti-constitutional is a matter of interpretation and debate.
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Is America a constitutional state?
Yes, America is a constitutional state. The United States is governed by a constitution that outlines the structure of the government, the rights and responsibilities of citizens, and the limitations of governmental power. The U.S. Constitution is the supreme law of the land and serves as the foundation for the country's legal and political system. The principles of constitutionalism, rule of law, and separation of powers are fundamental to the American system of government.
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What is the role of the Federal Constitutional Court in relation to constitutional complaints?
The Federal Constitutional Court in Germany plays a crucial role in reviewing constitutional complaints. It is responsible for ensuring that laws and government actions comply with the German Constitution. Citizens can file constitutional complaints with the court if they believe their constitutional rights have been violated. The court then assesses the complaint and has the power to declare laws or government actions unconstitutional, providing a vital mechanism for protecting individual rights and upholding the rule of law.
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