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Constitutional Materials and Decisions of the Conseil Constitutionnel

John Bell

in French Constitutional Law

This chapter reports the constitutional materials and decisions of the Conseil constitutionnel. It describes the sources of the Constitution, namely law and convention, fundamental principles ... More

This chapter reports the constitutional materials and decisions of the Conseil constitutionnel. It describes the sources of the Constitution, namely law and convention, fundamental principles recognized by the laws of the republic, the hierarchy between the declaration of the rights of man and of the citizen of 1789, and the preamble to the 1946 Constitution, as well as the Republican tradition and decisions of the Conseil constitutionnel. In addition, the division between loi and règlement prior to the Fifth Republic, and interpretations given to the 1958 Constitution are explained, and a discussion on Parliamentary procedure and decisions on fundamental freedoms and equality is provided.Less

Germany

Hilal Elver

in The Headscarf Controversy: Secularism and Freedom of Religion

Germany is home of the 3 million Turkish immigrants who came to Germany starting from early 1960s as guest workers and became part of the German Muslim minority. Germany unlike France does not follow ... More

Germany is home of the 3 million Turkish immigrants who came to Germany starting from early 1960s as guest workers and became part of the German Muslim minority. Germany unlike France does not follow assimilation policy to its immigrants and had difficulty to absorb Muslim presence. Despite Germany’s relatively less visible militant opposition to the headscarf, similar to that of its neighbour France, the German federal system has imposed wider and deeper legal barriers on its Muslim female teachers and civil servants. The German justification for a headscarf ban applicable to teachers is based on a legal argument not unlike the one relied upon in France, which identifies the headscarf as a “political symbol” that puts social peace at risk. Yet there are important differences between the two countries in their treatment of the Islamic headscarf. German laws have targeted teachers and civil servants, as opposed to middle and high school students. Another difference is due to the differing administrative systems of the two countries. German laws are targeted at education, and are therefore under the control of regional governments as opposed to the French centralized system. More importantly, German laws, in general, target Islam specifically with exemptions made for Christian symbols. In France, however, laïcité was the overt reasoning, and no exception was made for other religions. Germany has never claimed to be as secular as France. Its basic reason was the neutrality of the liberal state, but also conveyed was the sense that “our neutrality is Christian.”Less

Men and Women of Goodwill

in Constitutional Conscience: The Moral Dimension of Judicial Decision

On the last page of his 1982 book After Virtue, the philosopher Alasdair MacIntyre summed up his argument that Western society has become morally incoherent by drawing a parallel between the present ... More

On the last page of his 1982 book After Virtue, the philosopher Alasdair MacIntyre summed up his argument that Western society has become morally incoherent by drawing a parallel between the present day and “the epoch in which the Roman empire declined into the Dark Ages.” MacIntyre did not leave any doubt about where he would locate U.S. constitutional law in this account: for him, the Supreme Court's constitutional role is necessarily limited to the prevention of out-and-out civil war by ad hoc and amoral compromise. What are the characteristics of good conscience in constitutional decision making? This chapter argues that the answer lies in the constitutional virtues. It shows that the relationship between these virtues and good faith in constitutional argument is not fortuitous. The Constitution, and the practices of interpretation that we have evolved to render it truly authoritative, presuppose the constitutional virtues, which are therefore an intrinsic part of the overall system, as necessary and inescapable as judicial review itself.Less

Introduction

in Constitutional Conscience: The Moral Dimension of Judicial Decision

In Marbury v. Madison, Chief Justice John Marshall justified the judiciary's exercising the authority to disregard a statutory command when, in the judges' opinion, that command contravenes the ... More

In Marbury v. Madison, Chief Justice John Marshall justified the judiciary's exercising the authority to disregard a statutory command when, in the judges' opinion, that command contravenes the Constitution of the United States. Marshall believed that the practice of judicial review rests not only on the structural features of the U.S. Constitution, but flows as well from the judge's individual obligations as a moral actor. One hundred ninety-nine years later, however, Richard A. Posner implied that a judge has no kind of moral or even political duty to abide by constitutional text. This book explores the debate about judicial review and argues that the key to understanding the moral dimension of constitutional decision is the demand it places on the conscience of the judge. It discusses what the author believes to be the most salient features of the moral circumstances in which a Supreme Court justice finds him- or herself when called upon to make a constitutional decision. Finally, the book examines whether American constitutionalism is a good idea.Less

The Rule of Five

in Constitutional Conscience: The Moral Dimension of Judicial Decision

The late Supreme Court Justice William J. Brennan argues that the most important rule in constitutional law is the so-called Rule of Five. A five-justice majority on the Court, the strong Rule of ... More

The late Supreme Court Justice William J. Brennan argues that the most important rule in constitutional law is the so-called Rule of Five. A five-justice majority on the Court, the strong Rule of Five asserts, can do anything, at least in deciding constitutional law cases: in such cases, the conventions of American political life do not recognize any formal power to overrule a decision short of the adoption of a constitutional amendment. The rule is also, if true, a central feature in the moral circumstances in which the justices act when they exercise as a body the power of judicial review. This chapter considers what it believes to be the most salient features of the moral circumstances in which a Supreme Court justice finds him- or herself when called upon to make a constitutional decision. By its structural location in the political and legal order, and by long tradition, the Court's decisions cannot be reversed except by its own action or by the cumbersome and indeed almost unworkable processes required under Article V to amend the Constitution.Less

1808–1809: A Forgotten Crossroads in Constitutional History

in A Community Built on Words: The Constitution in History and Politics

The twelve-month period beginning in May 1808 was one of the most important in the entire history of American constitutional law. Three men made decisions, in each case a personally difficult ... More

The twelve-month period beginning in May 1808 was one of the most important in the entire history of American constitutional law. Three men made decisions, in each case a personally difficult decision, that signaled a crucial and beneficial turning point in the administration of the system of fundamental law that the U.S. Constitution ordains. The legitimacy of subsequent constitutional decision making rests on the extent to which the decision makers follow the precedents set in that fateful year. The first of these men was William Johnson, associate justice of the U.S. Supreme Court. Johnson was a South Carolinian of working-class origins who managed to attend Princeton and then rise to prominence in his home state's politics at an early age. He became speaker of the state house when twenty-six, and a year later was elected to the state's constitutional court.Less

A Question of Degree

in Constitutional Conscience: The Moral Dimension of Judicial Decision

This chapter examines how a constitutional decision maker might go about making interpretive choices in addressing a constitutional question that is open to more than one plausible answer. It focuses ... More

This chapter examines how a constitutional decision maker might go about making interpretive choices in addressing a constitutional question that is open to more than one plausible answer. It focuses on a legal opinion that a nineteenth-century attorney general, Amos Akerman, gave the president. It shows that Akerman modeled an approach to addressing disputable questions of constitutional law that employs legal craftsmanship not to conceal difficulties or hidden springs of decision but to render them transparent and thus to enable the reader to evaluate critically the conclusions reached by the writer. Such an approach brings the language of constitutional interpretation into accord with the reality of constitutional decision, and in doing so satisfies the duties of the constitutional conscience. The chapter also addresses the parallel between constitutional interpreters in the political branches (Akerman, for example) and judges making constitutional decisions. It concludes that while there are differences, they are more a matter of degree than of kind, and extreme skepticism about political-branch interpretation is unnecessary and inappropriate, and likely to be self-fulfilling.Less

Making It Up as We Go Along

in Constitutional Conscience: The Moral Dimension of Judicial Decision

In James B. Beam Distilling Co. v. Georgia, the Supreme Court rejected the propriety of employing “selective prospectivity” in civil litigation: when in a civil case the Court announces a new rule of ... More

In James B. Beam Distilling Co. v. Georgia, the Supreme Court rejected the propriety of employing “selective prospectivity” in civil litigation: when in a civil case the Court announces a new rule of law and applies the new rule in that case, it concluded that the judiciary is obliged to apply the new rule to the parties in other pending civil actions as well. Justice Antonin Scalia explained that in his view the employment of selective prospectivity amounts to an unconstitutional judicial exercise of the power to make law. What (if anything), based on the account this chapter gives of constitutional decision, enables us to speak of constitutional law as anything other than a series of decision points with no necessary connection over time? The answer must lie in large measure in the ongoing cultivation of the constitutional virtues, and this chapter argues that it is possible, primarily through the process of public discussion and criticism of the constitutional decisions of officials.Less

Living with Originalism

Lawrence B. Solum

in Constitutional Originalism: A Debate

This chapter comments on Robert Bennett's critique of originalism, especially the latter's claim that the original meaning of the Constitution cannot constrain constitutional decision making. Bennett ... More

This chapter comments on Robert Bennett's critique of originalism, especially the latter's claim that the original meaning of the Constitution cannot constrain constitutional decision making. Bennett argues that the constitutional text imposes some constraints on constitutional interpretation, but notes that this constraint is modest at best. He advances various arguments in support of his claim that constitutional practice cannot be constrained by original meaning. The chapter first considers Frederic Waismann's theory that language is open-textured before discussing Bennett's arguments against the constraining force of originalism in more detail. It also examines the conventional semantic meanings of the words and phrases that make up the Constitution, objections to original-intentions originalism, and the role of values in constitutional construction. The chapter concludes by addressing the relationship between originalism and politics.Less

1793: The Supreme Court and the Metaphysics of Sovereignty

in A Community Built on Words: The Constitution in History and Politics

The Supreme Court's first great constitutional decision, indeed its first important decision of any sort, was also its first great misstep. On February 18, 1793, the Court held in Chisholm v. Georgia ... More

The Supreme Court's first great constitutional decision, indeed its first important decision of any sort, was also its first great misstep. On February 18, 1793, the Court held in Chisholm v. Georgia that Article III of the Constitution gave it jurisdiction over an action for damages brought against a state by a citizen of another state. The Court's decision provoked swift and decisive repudiation. Less than a year after the Court announced its judgment, Congress approved a constitutional amendment intended to overturn Chisholm, and within a year the necessary supermajority of states had concurred in Congress's proposal. In February 1798, five years after Chisholm, the Court took note of the eleventh amendment, and held that it eliminated the Court's jurisdiction over all actions against states, including those like Chisholm itself that were filed before the amendment's ratification. Chisholm's continuing significance is limited to the light it sheds on the amendment that overruled it, and indeed that is how the justices of the current Court, and most constitutional lawyers, understandably view it.Less