Alice Donald
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0012
- Subject:
- Law, Human Rights and Immigration
The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences ...
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The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences for democratic legitimacy, are matters of debate and experimentation. This chapter explores the processes used to develop Bills of Rights (or proposed Bills) in the United Kingdom, Canada, Australia, and New Zealand, and analyses key aspects of the design of those processes. It examines the context for creating a new UK Bill of Rights, including the work of the Commission on a Bill of Rights established in 2011. It reflects on the challenges facing the Commission in the light of experience overseas. It concludes that, on present evidence, the Commission is highly unlikely to achieve an outcome which might enjoy democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation.Less
The right to participate in choosing or changing a constitution is becoming established in law and theory. The means of realising that right in the formation of Bills of Rights, and the consequences for democratic legitimacy, are matters of debate and experimentation. This chapter explores the processes used to develop Bills of Rights (or proposed Bills) in the United Kingdom, Canada, Australia, and New Zealand, and analyses key aspects of the design of those processes. It examines the context for creating a new UK Bill of Rights, including the work of the Commission on a Bill of Rights established in 2011. It reflects on the challenges facing the Commission in the light of experience overseas. It concludes that, on present evidence, the Commission is highly unlikely to achieve an outcome which might enjoy democratic legitimacy, in the sense of having been subject to inclusive and informed public deliberation.
Roger Masterman and Ian Leigh (eds)
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- book
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.001.0001
- Subject:
- Law, Human Rights and Immigration
More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights ...
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More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights protection with the UK's parliamentary democratic tradition and that it has given rise to a sophisticated interplay between the judiciary and elected politicians. Critics of the Act, on the other hand, charge it with failing in one of two opposing directions — either by ushering in judicial supremacism or as an exercise in futility. Unloved by the political elite, the Act's future is once again under review. This book takes stock of the impact of the Human Rights Act. The relationship of the UK courts with the European Court of Human Rights in Strasbourg is examined as is the corresponding question of the status of Convention jurisprudence within domestic courts. The effect of the Act on democratic governance is assessed by chapters addressing the issues of dialogue and the impact of the Act on established constitutional principle. From a practitioner viewpoint the revolutionary impact on legal argument and reasoning is analysed. A comparison of the Westminster model with other schemes for rights protection adopted in New Zealand, Hong Kong, and some Australian states is undertaken to measure the international impact of the Human Rights Act. Finally, the question of further constitutional reform is discussed in chapters giving a Scottish perspective, examining the processes of enacting rights protections and on options for the ‘British Bill of Rights’.Less
More than a decade after it came into force in October 2000 the Human Rights Act 1998 continues to divide opinion. Its supporters argue that the Act represents a subtle reconciliation of human rights protection with the UK's parliamentary democratic tradition and that it has given rise to a sophisticated interplay between the judiciary and elected politicians. Critics of the Act, on the other hand, charge it with failing in one of two opposing directions — either by ushering in judicial supremacism or as an exercise in futility. Unloved by the political elite, the Act's future is once again under review. This book takes stock of the impact of the Human Rights Act. The relationship of the UK courts with the European Court of Human Rights in Strasbourg is examined as is the corresponding question of the status of Convention jurisprudence within domestic courts. The effect of the Act on democratic governance is assessed by chapters addressing the issues of dialogue and the impact of the Act on established constitutional principle. From a practitioner viewpoint the revolutionary impact on legal argument and reasoning is analysed. A comparison of the Westminster model with other schemes for rights protection adopted in New Zealand, Hong Kong, and some Australian states is undertaken to measure the international impact of the Human Rights Act. Finally, the question of further constitutional reform is discussed in chapters giving a Scottish perspective, examining the processes of enacting rights protections and on options for the ‘British Bill of Rights’.
Helen Fenwick
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0013
- Subject:
- Law, Human Rights and Immigration
This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative ...
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This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.Less
This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.
Roger Masterman and Ian Leigh
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0001
- Subject:
- Law, Human Rights and Immigration
This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some ...
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This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some of the core constitutional questions addressed in this volume, detailing the individual essaying and highlighting common themes.Less
This chapter briefly traces the history of the Human Rights Act, contextualising the academic and popular debates which have seen the long-term future of the Act placed in doubt. It introduces some of the core constitutional questions addressed in this volume, detailing the individual essaying and highlighting common themes.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.003.0006
- Subject:
- Political Science, Comparative Politics
This chapter considers the socio‐politics of bill of rights debates and outcomes in New Zealand. The first part of the chapter focuses on the unsuccessful proposals for a bill of rights in the late ...
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This chapter considers the socio‐politics of bill of rights debates and outcomes in New Zealand. The first part of the chapter focuses on the unsuccessful proposals for a bill of rights in the late 1950s and early 1960s. This debate was triggered politically by a felt need to strengthen institutional checks following abolition of the upper house. However, the trigger was very weak and never pointed specifically to the need for a bill of rights. Meanwhile, strong social support for such an instrument was confined to the neo‐liberal Constitutional Society. Postmaterialist rights groups were ill‐developed and, in any case, largely adhered to traditional Westminster precepts. The second part examines the very different debate of the 1980s which led to the statutory New Zealand Bill of Rights Act (NZBOR). This was politically prompted by a more focused ‘aversive’ reaction against the perceived authoritarianism of Robert Muldoon's National administration. Meanwhile, postmaterialist rights groups were not only better developed by this stage but also more open to formalizing rights guarantees. Nevertheless, the relatively weak, backward‐looking nature of the political trigger combined with a continued societal belief in parliamentary sovereignty shaped and limited the nature of reform. Both parts of the chapter include detailed discussion of the particular role of the Māori including analysis of the failure to include special protections for indigenous rights with NZBOR.Less
This chapter considers the socio‐politics of bill of rights debates and outcomes in New Zealand. The first part of the chapter focuses on the unsuccessful proposals for a bill of rights in the late 1950s and early 1960s. This debate was triggered politically by a felt need to strengthen institutional checks following abolition of the upper house. However, the trigger was very weak and never pointed specifically to the need for a bill of rights. Meanwhile, strong social support for such an instrument was confined to the neo‐liberal Constitutional Society. Postmaterialist rights groups were ill‐developed and, in any case, largely adhered to traditional Westminster precepts. The second part examines the very different debate of the 1980s which led to the statutory New Zealand Bill of Rights Act (NZBOR). This was politically prompted by a more focused ‘aversive’ reaction against the perceived authoritarianism of Robert Muldoon's National administration. Meanwhile, postmaterialist rights groups were not only better developed by this stage but also more open to formalizing rights guarantees. Nevertheless, the relatively weak, backward‐looking nature of the political trigger combined with a continued societal belief in parliamentary sovereignty shaped and limited the nature of reform. Both parts of the chapter include detailed discussion of the particular role of the Māori including analysis of the failure to include special protections for indigenous rights with NZBOR.
Petra Butler
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780197265376
- eISBN:
- 9780191760426
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197265376.003.0011
- Subject:
- Law, Human Rights and Immigration
This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an ...
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This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.Less
This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.
Emilie M. Hafner-Burton
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691155357
- eISBN:
- 9781400846283
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155357.003.0004
- Subject:
- Law, EU Law
This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first ...
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This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first considers the most prominent international agreements that comprise the International Bill of Human Rights and their two treaty oversight bodies, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. It then examines other human rights laws and treaties, along with the functions of the UN Office of the High Commissioner for Human Rights and the Human Rights Council. It also looks at universal criminal law and tribunals, regional human rights laws and institutions, and the human rights legal systems in Europe, the Americas, Africa, the Islamic world and Asia. The chapter concludes by explaining why the international law on human rights has been so popular and how the international human rights legal system works.Less
This chapter provides an overview of the most important nuts and bolts of the international human rights legal system, which generally resides within the structures of the United Nations. It first considers the most prominent international agreements that comprise the International Bill of Human Rights and their two treaty oversight bodies, the Human Rights Committee and the Committee on Economic, Social, and Cultural Rights. It then examines other human rights laws and treaties, along with the functions of the UN Office of the High Commissioner for Human Rights and the Human Rights Council. It also looks at universal criminal law and tribunals, regional human rights laws and institutions, and the human rights legal systems in Europe, the Americas, Africa, the Islamic world and Asia. The chapter concludes by explaining why the international law on human rights has been so popular and how the international human rights legal system works.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.003.0004
- Subject:
- Political Science, Comparative Politics
This chapter forwards a new socio‐political explanation for the genesis of the Canadian Bill of Rights Act (CBORA) (1960). Following a brief chronological overview, the first part of the chapter ...
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This chapter forwards a new socio‐political explanation for the genesis of the Canadian Bill of Rights Act (CBORA) (1960). Following a brief chronological overview, the first part of the chapter explores the origins of increased social support for a bill of rights in Canada from the mid‐1930s onwards. It argues that demands for such an instrument arose out of the civil libertarian and social equality communities and that these communities were given added political saliency by the gradual postmaterialization of the Canadian economy and society. Nevertheless, this factor alone, cannot explain the precocious development of such pressures in Canada vis‐à‐vis other Westminster democracies. Explanations of this which focus either on international human rights developments or on the federal features of the Canadian political system are rejected. By contrast, it is found that Canada's particularly close cultural and people‐to‐people linkages with the bill of rights‐infused United States did prove important. The final part of the chapter explores the immediate political origins of CBORA. It is found that this was fuelled by the ‘aversive’ response of key Progressive Conservatives to the perceived abuses of procedural rights and other guarantees under the previous Liberal Government. Combined with the social forces already mentioned, the nature and strength of this trigger strongly influenced both the substantive content and statutory structure of CBORA.Less
This chapter forwards a new socio‐political explanation for the genesis of the Canadian Bill of Rights Act (CBORA) (1960). Following a brief chronological overview, the first part of the chapter explores the origins of increased social support for a bill of rights in Canada from the mid‐1930s onwards. It argues that demands for such an instrument arose out of the civil libertarian and social equality communities and that these communities were given added political saliency by the gradual postmaterialization of the Canadian economy and society. Nevertheless, this factor alone, cannot explain the precocious development of such pressures in Canada vis‐à‐vis other Westminster democracies. Explanations of this which focus either on international human rights developments or on the federal features of the Canadian political system are rejected. By contrast, it is found that Canada's particularly close cultural and people‐to‐people linkages with the bill of rights‐infused United States did prove important. The final part of the chapter explores the immediate political origins of CBORA. It is found that this was fuelled by the ‘aversive’ response of key Progressive Conservatives to the perceived abuses of procedural rights and other guarantees under the previous Liberal Government. Combined with the social forces already mentioned, the nature and strength of this trigger strongly influenced both the substantive content and statutory structure of CBORA.
David Erdos
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199557769
- eISBN:
- 9780191594380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199557769.003.0008
- Subject:
- Political Science, Comparative Politics
This chapter explores the contours of bill of rights debates and outcomes in Australia. The first part of the chapter demonstrates that, similarly to the situation in other Westminster democracies, ...
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This chapter explores the contours of bill of rights debates and outcomes in Australia. The first part of the chapter demonstrates that, similarly to the situation in other Westminster democracies, pressure for a bill of rights has been emerged from the 1960s from a constituency of civil liberty and social equality seekers, given added political saliency by the postmaterialization of the Australian economy and society. The second part then explores the puzzle of why, uniquely, no such initiatives have proved successful. An explanation based on the alleged special weakness of background pressure for such a reform is rejected. Instead, it is argued that two features of Australian politics have blocked the supply of a bill of rights in this case. Firstly, Australia's strong institutional fragmentation compared at least with the United Kingdom and New Zealand have raised the bar which elite supporters of a bill of rights have to surpass in order to bring this project to fruition. Secondly, and more importantly, during relevant periods of its history, Australia has lacked a clear political trigger providing elites and others with an immediate impetus for change. The chapter closes with a brief consideration of the prospects for bill of rights genesis, following the return of the Rudd Labor Government in 2007.Less
This chapter explores the contours of bill of rights debates and outcomes in Australia. The first part of the chapter demonstrates that, similarly to the situation in other Westminster democracies, pressure for a bill of rights has been emerged from the 1960s from a constituency of civil liberty and social equality seekers, given added political saliency by the postmaterialization of the Australian economy and society. The second part then explores the puzzle of why, uniquely, no such initiatives have proved successful. An explanation based on the alleged special weakness of background pressure for such a reform is rejected. Instead, it is argued that two features of Australian politics have blocked the supply of a bill of rights in this case. Firstly, Australia's strong institutional fragmentation compared at least with the United Kingdom and New Zealand have raised the bar which elite supporters of a bill of rights have to surpass in order to bring this project to fruition. Secondly, and more importantly, during relevant periods of its history, Australia has lacked a clear political trigger providing elites and others with an immediate impetus for change. The chapter closes with a brief consideration of the prospects for bill of rights genesis, following the return of the Rudd Labor Government in 2007.
ASHUTOSH BHAGWAT
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195377781
- eISBN:
- 9780199775842
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377781.003.003
- Subject:
- Law, Constitutional and Administrative Law
This chapter argues that the gap between historical and modern understandings of rights matters a great deal, because when modern courts actually enforce the Bill of Rights and the rest of the ...
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This chapter argues that the gap between historical and modern understandings of rights matters a great deal, because when modern courts actually enforce the Bill of Rights and the rest of the Constitution (notably the Thirteenth, Fourteenth, and Fifteenth Amendments — generally called the Civil War Amendments), their decisions are heavily shaped by the traditional understanding of rights as collective measures designed to control governmental abuse of power. In fact, the influence of the original, collective view of rights on modern law remains profound, indeed overwhelming. To explain this point fully the chapter further develops two topics. First, it discusses in more detail how and why legal, constitutional rights differ from natural, individual rights of autonomy, focusing in particular on the close relationship between rights and structural limits on governmental power. Second, it argues that despite the other, radical changes that occurred in the constitutional system as a consequence of the Civil War and Reconstruction, the role of rights in our legal system did not change fundamentally. In particular, even though for a period of time in the early 20th century the Supreme Court was enforcing a more individualistic version of constitutional rights, that approach has largely (but not entirely) been abandoned in the modern, post-World War II era.Less
This chapter argues that the gap between historical and modern understandings of rights matters a great deal, because when modern courts actually enforce the Bill of Rights and the rest of the Constitution (notably the Thirteenth, Fourteenth, and Fifteenth Amendments — generally called the Civil War Amendments), their decisions are heavily shaped by the traditional understanding of rights as collective measures designed to control governmental abuse of power. In fact, the influence of the original, collective view of rights on modern law remains profound, indeed overwhelming. To explain this point fully the chapter further develops two topics. First, it discusses in more detail how and why legal, constitutional rights differ from natural, individual rights of autonomy, focusing in particular on the close relationship between rights and structural limits on governmental power. Second, it argues that despite the other, radical changes that occurred in the constitutional system as a consequence of the Civil War and Reconstruction, the role of rights in our legal system did not change fundamentally. In particular, even though for a period of time in the early 20th century the Supreme Court was enforcing a more individualistic version of constitutional rights, that approach has largely (but not entirely) been abandoned in the modern, post-World War II era.
ASHUTOSH BHAGWAT
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195377781
- eISBN:
- 9780199775842
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377781.003.011
- Subject:
- Law, Constitutional and Administrative Law
The eight long years of the second Bush Administration and the War on Terror that it prosecuted have generated an extraordinary number of complex and divisive questions of constitutional law. ...
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The eight long years of the second Bush Administration and the War on Terror that it prosecuted have generated an extraordinary number of complex and divisive questions of constitutional law. Notably, however, most of the constitutional disputes arising out of the War on Terror have not primarily implicated the main topic of this book, the Bill of Rights and the Fourteenth Amendment. Instead, they have tended to relate to topics such as the separation of powers, the scope of and limits on executive power, and the role of international law. This is not to say that the Bill of Rights is completely irrelevant to these disputes; in particular, the detention of enemy combatants clearly implicates the Due Process Clause of the Fifth Amendment, and the National Security Agency's (NSA) program of warrantless wiretapping potentially violates the Search and Seizure Clause of the Fourth Amendment. On the whole, however, the role of the Bill of Rights has certainly been peripheral in recent disputes, and even when clearly implicated, their application to these disputes has been far from clear. Why that is so, but why the insights we have developed up to this point nonetheless shed important light on the constitutionality of certain aspects of the War on Terror, is the subject of this chapter.Less
The eight long years of the second Bush Administration and the War on Terror that it prosecuted have generated an extraordinary number of complex and divisive questions of constitutional law. Notably, however, most of the constitutional disputes arising out of the War on Terror have not primarily implicated the main topic of this book, the Bill of Rights and the Fourteenth Amendment. Instead, they have tended to relate to topics such as the separation of powers, the scope of and limits on executive power, and the role of international law. This is not to say that the Bill of Rights is completely irrelevant to these disputes; in particular, the detention of enemy combatants clearly implicates the Due Process Clause of the Fifth Amendment, and the National Security Agency's (NSA) program of warrantless wiretapping potentially violates the Search and Seizure Clause of the Fourth Amendment. On the whole, however, the role of the Bill of Rights has certainly been peripheral in recent disputes, and even when clearly implicated, their application to these disputes has been far from clear. Why that is so, but why the insights we have developed up to this point nonetheless shed important light on the constitutionality of certain aspects of the War on Terror, is the subject of this chapter.
Thomas J. Curry
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780195145694
- eISBN:
- 9780199834129
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195145690.001.0001
- Subject:
- Religion, History of Christianity
Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because ...
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Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because scholars have misinterpreted and manipulated the historical background of the meaning of the Free Exercise of Religion and Establishment of Religion, they have led legislators and judges back into the problem of Church and State that prevailed in Christendom, and that the Amendment solved. As a result, the Supreme Court's interpretation of the First Amendment has reached a point of deep confusion and crisis. Whereas the Amendment was intended to specify government's lack of jurisdiction in religion, modern interpretations of it have conferred upon government power to define the meaning of the Free Exercise of Religion, religious neutrality, and what aids or hinders religion. The way out of the present confusion lies in confining government to what is secular and forbidding it to make religious assessments and decisions. Examining the decisions of the Supreme Court, this work demonstrates that by reconnecting with the history of the First Amendment and approaching it as a limitation on the power of government, rather than as a grant to government to protect religious liberty, the courts can escape the crisis and confusion they are presently experiencing. Religious liberty is a natural right. Within the meaning of the First Amendment, the Free Exercise of Religion means freedom from government jurisdiction in religion, not a government guarantee to allow individuals to exercise the religion of their choice.Less
Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because scholars have misinterpreted and manipulated the historical background of the meaning of the Free Exercise of Religion and Establishment of Religion, they have led legislators and judges back into the problem of Church and State that prevailed in Christendom, and that the Amendment solved. As a result, the Supreme Court's interpretation of the First Amendment has reached a point of deep confusion and crisis. Whereas the Amendment was intended to specify government's lack of jurisdiction in religion, modern interpretations of it have conferred upon government power to define the meaning of the Free Exercise of Religion, religious neutrality, and what aids or hinders religion. The way out of the present confusion lies in confining government to what is secular and forbidding it to make religious assessments and decisions. Examining the decisions of the Supreme Court, this work demonstrates that by reconnecting with the history of the First Amendment and approaching it as a limitation on the power of government, rather than as a grant to government to protect religious liberty, the courts can escape the crisis and confusion they are presently experiencing. Religious liberty is a natural right. Within the meaning of the First Amendment, the Free Exercise of Religion means freedom from government jurisdiction in religion, not a government guarantee to allow individuals to exercise the religion of their choice.
Vernon Bogdanor
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198293347
- eISBN:
- 9780191598821
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293348.003.0001
- Subject:
- Political Science, UK Politics
The British monarchy is by far the oldest of all the constitutional monarchies. Its origins can be traced back to before the Norman Conquest. The influence of Magna Carta and the Bill of Rights are ...
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The British monarchy is by far the oldest of all the constitutional monarchies. Its origins can be traced back to before the Norman Conquest. The influence of Magna Carta and the Bill of Rights are discussed. Cabinet government and the expansion of the suffrage in the nineteenth century affected the monarchy profoundly. It was during the reign of Queen Victoria that the monarchy took on its recognizably modern form. This was noticed and analysed by the most brilliant journalist of the age, Walter Bagehot, and by its most imaginative politician, Benjamin Disraeli. Bagehot laid down various constitutional precepts to which sovereigns after Queen Victoria sought to adhere.Less
The British monarchy is by far the oldest of all the constitutional monarchies. Its origins can be traced back to before the Norman Conquest. The influence of Magna Carta and the Bill of Rights are discussed. Cabinet government and the expansion of the suffrage in the nineteenth century affected the monarchy profoundly. It was during the reign of Queen Victoria that the monarchy took on its recognizably modern form. This was noticed and analysed by the most brilliant journalist of the age, Walter Bagehot, and by its most imaginative politician, Benjamin Disraeli. Bagehot laid down various constitutional precepts to which sovereigns after Queen Victoria sought to adhere.
James Allan
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199246687
- eISBN:
- 9780191714603
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199246687.003.0020
- Subject:
- Law, Human Rights and Immigration
This chapter examines the first decade of operation of the statutory New Zealand Bill of Rights Act 1990 and the extent to which there have been any judicial moves to ‘upgrade’ it, to make it a more ...
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This chapter examines the first decade of operation of the statutory New Zealand Bill of Rights Act 1990 and the extent to which there have been any judicial moves to ‘upgrade’ it, to make it a more potent instrument than the enactors seemed to intend. Next, and related to these concerns, is the issue of certainty and the degree to which Bill of Rights Act jurisprudence in New Zealand can be said to be settled. There is the further but connected issue of the degree of discretion the judges have given themselves (in that case law) when it comes to applying the Bill of Rights Act. The likely role and powers of unelected judges called upon to operate, apply, and interpret a statutory Bill of Rights Act are also considered. The Bill of Rights gives judges power to strike down legislation and decide controversial questions of social policy over which sincere, intelligent, well-meaning people disagree.Less
This chapter examines the first decade of operation of the statutory New Zealand Bill of Rights Act 1990 and the extent to which there have been any judicial moves to ‘upgrade’ it, to make it a more potent instrument than the enactors seemed to intend. Next, and related to these concerns, is the issue of certainty and the degree to which Bill of Rights Act jurisprudence in New Zealand can be said to be settled. There is the further but connected issue of the degree of discretion the judges have given themselves (in that case law) when it comes to applying the Bill of Rights Act. The likely role and powers of unelected judges called upon to operate, apply, and interpret a statutory Bill of Rights Act are also considered. The Bill of Rights gives judges power to strike down legislation and decide controversial questions of social policy over which sincere, intelligent, well-meaning people disagree.
ASHUTOSH BHAGWAT
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195377781
- eISBN:
- 9780199775842
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377781.003.004
- Subject:
- Law, Constitutional and Administrative Law
Chapter 3 demonstrated that as a matter of text and history, the Bill of Rights and the Fourteenth Amendment do not create the system of individual autonomy and entitlements that much modern, ...
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Chapter 3 demonstrated that as a matter of text and history, the Bill of Rights and the Fourteenth Amendment do not create the system of individual autonomy and entitlements that much modern, constitutional discourse suggests that they do. In other words, we do not have a libertarian Constitution. Instead, our Constitution, both as originally drafted and as subsequently amended, is fundamentally a structural document, concerned with the exercise of — and limitations on — governmental power. This chapter further develops this insight, explaining why a structural vision of the Bill of Rights and the Fourteenth Amendment, one focused on limits on power, fits well with both the rest of the Constitution, and with practical realities. It also sets forth a framework regarding precisely what sorts of limits on governmental power are implied by a structural vision of the Constitution.Less
Chapter 3 demonstrated that as a matter of text and history, the Bill of Rights and the Fourteenth Amendment do not create the system of individual autonomy and entitlements that much modern, constitutional discourse suggests that they do. In other words, we do not have a libertarian Constitution. Instead, our Constitution, both as originally drafted and as subsequently amended, is fundamentally a structural document, concerned with the exercise of — and limitations on — governmental power. This chapter further develops this insight, explaining why a structural vision of the Bill of Rights and the Fourteenth Amendment, one focused on limits on power, fits well with both the rest of the Constitution, and with practical realities. It also sets forth a framework regarding precisely what sorts of limits on governmental power are implied by a structural vision of the Constitution.
Robert Song
- Published in print:
- 2006
- Published Online:
- October 2011
- ISBN:
- 9780198269335
- eISBN:
- 9780191683619
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198269335.003.0006
- Subject:
- Religion, Theology, Religion and Society
This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the ...
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This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the judicial review of legislation, with special reference to the introduction of a Bill of Rights into British domestic law. It discusses Ronald Dworkin's defence of judicial review and John Finnis' criticism on Dworkin's position. This chapter also aims to produce a general theological account of the relation of the legislature and the judiciary.Less
This chapter examines the key problem in liberal constitutional theory. It attempts to develop some theological understanding of the issues of constitutional and political theory connected with the judicial review of legislation, with special reference to the introduction of a Bill of Rights into British domestic law. It discusses Ronald Dworkin's defence of judicial review and John Finnis' criticism on Dworkin's position. This chapter also aims to produce a general theological account of the relation of the legislature and the judiciary.
Matthew Flinders
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199271597
- eISBN:
- 9780191709234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271597.003.0016
- Subject:
- Political Science, Comparative Politics, UK Politics
At the end of the first decade of the twenty‐first century democracy in the United Kingdom is drifting. No political party seems able to articulate what constitutional reform is for anymore and in ...
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At the end of the first decade of the twenty‐first century democracy in the United Kingdom is drifting. No political party seems able to articulate what constitutional reform is for anymore and in this context stimulating debates about ‘Britishness’, citizenship or a ‘common statement of values’ might, therefore, be regarded as weak and oblique responses to the challenges of constitutional anomie set out in this book.Less
At the end of the first decade of the twenty‐first century democracy in the United Kingdom is drifting. No political party seems able to articulate what constitutional reform is for anymore and in this context stimulating debates about ‘Britishness’, citizenship or a ‘common statement of values’ might, therefore, be regarded as weak and oblique responses to the challenges of constitutional anomie set out in this book.
Vernon Bogdanor
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198293347
- eISBN:
- 9780191598821
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293348.003.0002
- Subject:
- Political Science, UK Politics
Constitutional monarchy is a form of monarchy governed by rules. In Britain, these rules are of two kinds—non‐statutory rules governing hereditary succession and statutory rules laying down certain ...
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Constitutional monarchy is a form of monarchy governed by rules. In Britain, these rules are of two kinds—non‐statutory rules governing hereditary succession and statutory rules laying down certain conditions that the holder of the throne must meet. Although descent is the main criterion of succession, the great constitutional struggles of the seventeenth century, culminating in the Bill of Rights of 1689 and the Act of Settlement of 1701, confirmed that the succession could be regulated by parliament. The British monarchy is a parliamentary monarchy. Indeed, the succession can only be altered by Act of Parliament. Provision is also made by Act of Parliament for cases when the sovereign is incapable or a minor, where a Regent acts in place of the sovereign. The rules regulating the royal consort and the heir to the throne and the Royal Marriages Act of 1772 are analysed. The rules of succession, being a product of the religious struggles of the seventeenth century, are now ripe for reform. So also is the Royal Marriages Act.Less
Constitutional monarchy is a form of monarchy governed by rules. In Britain, these rules are of two kinds—non‐statutory rules governing hereditary succession and statutory rules laying down certain conditions that the holder of the throne must meet. Although descent is the main criterion of succession, the great constitutional struggles of the seventeenth century, culminating in the Bill of Rights of 1689 and the Act of Settlement of 1701, confirmed that the succession could be regulated by parliament. The British monarchy is a parliamentary monarchy. Indeed, the succession can only be altered by Act of Parliament. Provision is also made by Act of Parliament for cases when the sovereign is incapable or a minor, where a Regent acts in place of the sovereign. The rules regulating the royal consort and the heir to the throne and the Royal Marriages Act of 1772 are analysed. The rules of succession, being a product of the religious struggles of the seventeenth century, are now ripe for reform. So also is the Royal Marriages Act.
ASHUTOSH BHAGWAT
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195377781
- eISBN:
- 9780199775842
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377781.003.007
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines protection of private property and the sanctity of contract from governmental overreaching in the Constitution. In the body of the Constitution itself, the Contracts Clause of ...
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This chapter examines protection of private property and the sanctity of contract from governmental overreaching in the Constitution. In the body of the Constitution itself, the Contracts Clause of Article I, Section 10 specifically forbids state governments from “impairing the Obligation of Contracts”; one of the very few limitations imposed on states by the Constitution, it should be noted, and the only one (other than the ban on titles of nobility) that is not understandable as simply preventing state governments from intruding on the powers of the new national government. In the Bill of Rights, two provisions of the Fifth Amendment specifically protect property: the Due Process Clause, which provides that no person shall “be deprived of life, liberty, or property, without due process of law”; and the so-called Takings Clause, which states that “nor shall private property be taken for public use without just compensation.” Finally, the Fourth Amendment's assurance that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” also has the effect of protecting private property from governmental intrusions.Less
This chapter examines protection of private property and the sanctity of contract from governmental overreaching in the Constitution. In the body of the Constitution itself, the Contracts Clause of Article I, Section 10 specifically forbids state governments from “impairing the Obligation of Contracts”; one of the very few limitations imposed on states by the Constitution, it should be noted, and the only one (other than the ban on titles of nobility) that is not understandable as simply preventing state governments from intruding on the powers of the new national government. In the Bill of Rights, two provisions of the Fifth Amendment specifically protect property: the Due Process Clause, which provides that no person shall “be deprived of life, liberty, or property, without due process of law”; and the so-called Takings Clause, which states that “nor shall private property be taken for public use without just compensation.” Finally, the Fourth Amendment's assurance that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” also has the effect of protecting private property from governmental intrusions.
Danny Nicol
- Published in print:
- 2001
- Published Online:
- March 2012
- ISBN:
- 9780199247790
- eISBN:
- 9780191697685
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199247790.003.0008
- Subject:
- Law, EU Law
This chapter is another ‘comparison’ chapter analysing the history of parliamentary debates on a Bill of Rights, culminating in the passage of the Human Rights Act 1998. It investigates whether the ...
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This chapter is another ‘comparison’ chapter analysing the history of parliamentary debates on a Bill of Rights, culminating in the passage of the Human Rights Act 1998. It investigates whether the issues of parliamentary sovereignty and judicial power were clearer to MPs in the Bill of Rights context than in the Community context, and considers why this might have been the case.Less
This chapter is another ‘comparison’ chapter analysing the history of parliamentary debates on a Bill of Rights, culminating in the passage of the Human Rights Act 1998. It investigates whether the issues of parliamentary sovereignty and judicial power were clearer to MPs in the Bill of Rights context than in the Community context, and considers why this might have been the case.
