Stephen Tierney
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199592791
- eISBN:
- 9780191741067
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592791.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, ...
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The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This book addresses the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny. The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of constitutions; the establishment of complex new models of sub-state autonomy, particularly in multinational states; and the transfer of sovereign powers from European states to the European Union. The book, as a study in constitutional theory, addresses the challenges this phenomenon poses not only for particular constitutional orders, which are typically structured around a representative model of democracy, but for constitutional theory more broadly. The main theoretical focus of the book is the relationship between the referendum and democracy. It addresses the standard criticisms which the referendum is subjected to by democratic theorists and deploys both civic republican theory and the recent turn in deliberative democracy to ask whether by good process-design the constitutional referendum is capable of facilitating the engagement of citizens in deliberative acts of constitution-making.Less
The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This book addresses the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny. The book identifies four substantive constitutional processes where the referendum is regularly used today: the founding of new states; the creation or amendment of constitutions; the establishment of complex new models of sub-state autonomy, particularly in multinational states; and the transfer of sovereign powers from European states to the European Union. The book, as a study in constitutional theory, addresses the challenges this phenomenon poses not only for particular constitutional orders, which are typically structured around a representative model of democracy, but for constitutional theory more broadly. The main theoretical focus of the book is the relationship between the referendum and democracy. It addresses the standard criticisms which the referendum is subjected to by democratic theorists and deploys both civic republican theory and the recent turn in deliberative democracy to ask whether by good process-design the constitutional referendum is capable of facilitating the engagement of citizens in deliberative acts of constitution-making.
Sotirios A. Barber and James E. Fleming
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780195328578
- eISBN:
- 9780199855339
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328578.003.0001
- Subject:
- Law, Constitutional and Administrative Law
Many books on and courses in constitutional law are about what the United States Supreme Court has said about the Constitution, not about what the Constitution itself means. But the enterprise of ...
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Many books on and courses in constitutional law are about what the United States Supreme Court has said about the Constitution, not about what the Constitution itself means. But the enterprise of constitutional interpretation presupposes that the Constitution in and of itself can mean something, and that conscientious, responsible interpreters are seeking the true meaning or best interpretation of the Constitution. This chapter explores the questions raised by these presuppositions. It also raises the basic questions of constitutional interpretation: What is the Constitution?, Who may authoritatively interpret it?, and How should it be interpreted?Less
Many books on and courses in constitutional law are about what the United States Supreme Court has said about the Constitution, not about what the Constitution itself means. But the enterprise of constitutional interpretation presupposes that the Constitution in and of itself can mean something, and that conscientious, responsible interpreters are seeking the true meaning or best interpretation of the Constitution. This chapter explores the questions raised by these presuppositions. It also raises the basic questions of constitutional interpretation: What is the Constitution?, Who may authoritatively interpret it?, and How should it be interpreted?
Victor Ferreres Comella
- Published in print:
- 2009
- Published Online:
- October 2013
- ISBN:
- 9780300148671
- eISBN:
- 9780300148688
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300148671.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book contrasts the European “centralized” constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralized model, such as that of the ...
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This book contrasts the European “centralized” constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralized model, such as that of the United States, in which courts deal with both constitutional and nonconstitutional questions. The book's systematic exploration of the reasons for and against the creation of constitutional courts is detailed and it offers an ambitious theory to justify the European preference for them. Based on extensive research on eighteen European countries, the book finds that centralized review fits well with the civil law tradition and structures of ordinary adjudication in those countries. It concludes that, while the decentralized model works for the United States, there is more than one way to preserve democratic values and that these values are best preserved in the parliamentary democracies of Europe through constitutional courts.Less
This book contrasts the European “centralized” constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralized model, such as that of the United States, in which courts deal with both constitutional and nonconstitutional questions. The book's systematic exploration of the reasons for and against the creation of constitutional courts is detailed and it offers an ambitious theory to justify the European preference for them. Based on extensive research on eighteen European countries, the book finds that centralized review fits well with the civil law tradition and structures of ordinary adjudication in those countries. It concludes that, while the decentralized model works for the United States, there is more than one way to preserve democratic values and that these values are best preserved in the parliamentary democracies of Europe through constitutional courts.
Mark A. Graber
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199943883
- eISBN:
- 9780199369799
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199943883.003.0001
- Subject:
- Law, Constitutional and Administrative Law
Constitutionalism is more than the study of constitutional law or constitutional interpretation. Students, teachers, citizens, and even legal practitioners must consider a broader range of questions ...
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Constitutionalism is more than the study of constitutional law or constitutional interpretation. Students, teachers, citizens, and even legal practitioners must consider a broader range of questions when thinking about the actual and desirable impact of constitutionalism in the United States: What is a constitution? What purposes do constitutions serve? How should constitutions be interpreted? How should constitutional disputes be resolved? How are constitutions, ratified, changed, and repudiated? What are the universal and distinctive features of a constitution? How do constitutions work? What is the relationship between constitutional decision-making and ordinary politics? The study of constitutionalism also requires an understanding of basic constitutional design. The study of American constitutionalism, by comparison, largely takes the constitutional design of 1787 for granted and explores questions raised by the construction of that particular regime.Less
Constitutionalism is more than the study of constitutional law or constitutional interpretation. Students, teachers, citizens, and even legal practitioners must consider a broader range of questions when thinking about the actual and desirable impact of constitutionalism in the United States: What is a constitution? What purposes do constitutions serve? How should constitutions be interpreted? How should constitutional disputes be resolved? How are constitutions, ratified, changed, and repudiated? What are the universal and distinctive features of a constitution? How do constitutions work? What is the relationship between constitutional decision-making and ordinary politics? The study of constitutionalism also requires an understanding of basic constitutional design. The study of American constitutionalism, by comparison, largely takes the constitutional design of 1787 for granted and explores questions raised by the construction of that particular regime.
Daniel A. Farber and Suzanna Sherry
- Published in print:
- 2002
- Published Online:
- March 2013
- ISBN:
- 9780226238081
- eISBN:
- 9780226238104
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226238104.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of ...
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This book attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. The book finds that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. This book reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.Less
This book attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. The book finds that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. This book reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.
A.G. Noorani
- Published in print:
- 2006
- Published Online:
- October 2012
- ISBN:
- 9780195678291
- eISBN:
- 9780199080588
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195678291.003.0011
- Subject:
- Law, Constitutional and Administrative Law
This chapter addresses constitutional questions that arose in the aftermath of the Bharatiya Janata Party's (BJP) withdrawal of support to the National Front on 23 October 1990. There were four ...
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This chapter addresses constitutional questions that arose in the aftermath of the Bharatiya Janata Party's (BJP) withdrawal of support to the National Front on 23 October 1990. There were four distinct issues. First, was Prime Minister V. P. Singh bound to resign from office soon after the BJP withdrew its support, or was he entitled to secure a verdict on his stewardship from the Lok Sabha? Second, if his motion of confidence is defeated in the Lok Sabha, is he entitled to dissolve the Lok Sabha in favour of a verdict of the people? What are the powers and duties of the president in such a situation? Third, is the president bound, in that event, to ask the single largest party in the Lok Sabha, the Congress(I), to form a government? Last, if the Congress(I), on being so asked, fails to drum up a majority and asks for the Lok Sabha's dissolution, is the president bound to grant it?Less
This chapter addresses constitutional questions that arose in the aftermath of the Bharatiya Janata Party's (BJP) withdrawal of support to the National Front on 23 October 1990. There were four distinct issues. First, was Prime Minister V. P. Singh bound to resign from office soon after the BJP withdrew its support, or was he entitled to secure a verdict on his stewardship from the Lok Sabha? Second, if his motion of confidence is defeated in the Lok Sabha, is he entitled to dissolve the Lok Sabha in favour of a verdict of the people? What are the powers and duties of the president in such a situation? Third, is the president bound, in that event, to ask the single largest party in the Lok Sabha, the Congress(I), to form a government? Last, if the Congress(I), on being so asked, fails to drum up a majority and asks for the Lok Sabha's dissolution, is the president bound to grant it?
