André Béteille
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780198080961
- eISBN:
- 9780199082049
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198080961.003.0004
- Subject:
- Sociology, Politics, Social Movements and Social Change
Constitutional morality is important for constitutional laws to be effective. Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious. This ...
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Constitutional morality is important for constitutional laws to be effective. Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious. This chapter discusses constitutional morality in India, makes a distinction between ‘constitutional democracy’ and ‘populist democracy’, and argues that democracy has survived in India by moving away from the ideal of a constitutional democracy towards a more populist form. It looks at the Emergency of 1975–7 to show the connection between anarchy and the abuse of power as two forces that are both antithetical to constitutional morality. It also examines the link between constitutional morality and the principle of civil disobedience, which under the leadership of Mahatma Gandhi became the cornerstone of India’s nationalist movement.Less
Constitutional morality is important for constitutional laws to be effective. Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious. This chapter discusses constitutional morality in India, makes a distinction between ‘constitutional democracy’ and ‘populist democracy’, and argues that democracy has survived in India by moving away from the ideal of a constitutional democracy towards a more populist form. It looks at the Emergency of 1975–7 to show the connection between anarchy and the abuse of power as two forces that are both antithetical to constitutional morality. It also examines the link between constitutional morality and the principle of civil disobedience, which under the leadership of Mahatma Gandhi became the cornerstone of India’s nationalist movement.
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.
Tony Smith
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691154923
- eISBN:
- 9781400842025
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691154923.003.0003
- Subject:
- Political Science, Political Theory
This chapter examines Woodrow Wilson's attempts to foster constitutionalism in Latin America through imperialist interventions that commenced shortly after he was elected president in 1913. It begins ...
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This chapter examines Woodrow Wilson's attempts to foster constitutionalism in Latin America through imperialist interventions that commenced shortly after he was elected president in 1913. It begins with a discussion of three policy instruments that Wilson found at his disposal after he assumed the presidency and that he could use to promote constitutional democracy in Latin America: limited military occupation and control of customs houses, economic influence, and international agreements. The chapter then assesses Wilson's interventionist policy in Mexico and the Dominican Republic, along with the failure of Wilsonianism in the Philippines and the Dominican Republic. It also considers the limits of Wilson's democratic initiatives abroad before concluding with an analysis of four distinct U.S. policies aimed at fostering political stability in Latin America and ensuring that American security interests would not be threatened.Less
This chapter examines Woodrow Wilson's attempts to foster constitutionalism in Latin America through imperialist interventions that commenced shortly after he was elected president in 1913. It begins with a discussion of three policy instruments that Wilson found at his disposal after he assumed the presidency and that he could use to promote constitutional democracy in Latin America: limited military occupation and control of customs houses, economic influence, and international agreements. The chapter then assesses Wilson's interventionist policy in Mexico and the Dominican Republic, along with the failure of Wilsonianism in the Philippines and the Dominican Republic. It also considers the limits of Wilson's democratic initiatives abroad before concluding with an analysis of four distinct U.S. policies aimed at fostering political stability in Latin America and ensuring that American security interests would not be threatened.
Hauke Brunkhorst
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199585007
- eISBN:
- 9780191723469
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199585007.003.0009
- Subject:
- Law, Constitutional and Administrative Law
This chapter presents a broad-ranging account of the impact of the emergence of ‘world society’ on the ideals of constitutional democracy. This argument is based on the premise that constitutionalism ...
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This chapter presents a broad-ranging account of the impact of the emergence of ‘world society’ on the ideals of constitutional democracy. This argument is based on the premise that constitutionalism has always maintained the Janus-face of inclusion and exclusion, emancipation and oppression. Although Western constitutionalism has acquired its inclusive qualities at the price of its cosmopolitan claims, it has nevertheless been able to provide a legal means of coordinating conflicting powers within nation-state systems. The democratic possibilities which are inherent in the emergence of a world society can be realised only by promoting an agenda of radical reform which, in conceptual terms, requires us to overcome the limitations of dualistic and representational thinking.Less
This chapter presents a broad-ranging account of the impact of the emergence of ‘world society’ on the ideals of constitutional democracy. This argument is based on the premise that constitutionalism has always maintained the Janus-face of inclusion and exclusion, emancipation and oppression. Although Western constitutionalism has acquired its inclusive qualities at the price of its cosmopolitan claims, it has nevertheless been able to provide a legal means of coordinating conflicting powers within nation-state systems. The democratic possibilities which are inherent in the emergence of a world society can be realised only by promoting an agenda of radical reform which, in conceptual terms, requires us to overcome the limitations of dualistic and representational thinking.
Maria Cahill
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199795208
- eISBN:
- 9780199919307
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199795208.003.0050
- Subject:
- Law, Public International Law
This chapter examines the constitutional conflict that occurs in the context of Ireland's rejection of the Lisbon Treaty. It begins by distinguishing the concepts “direct democracy” and ...
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This chapter examines the constitutional conflict that occurs in the context of Ireland's rejection of the Lisbon Treaty. It begins by distinguishing the concepts “direct democracy” and “constitutional democracy” in order to clarify the importance of referenda if they are used as the constitutional amendability procedure in a functioning constitutional democracy. It then considers the place of amendability procedure in Irish constitutional history. It discusses Ireland's constitutional amendability procedure vis-à-vis European treaty referenda. The chapter concludes by examining the three ways in which Europe's constitutional ambitions are intimately tied up with national constitutional amendability procedures.Less
This chapter examines the constitutional conflict that occurs in the context of Ireland's rejection of the Lisbon Treaty. It begins by distinguishing the concepts “direct democracy” and “constitutional democracy” in order to clarify the importance of referenda if they are used as the constitutional amendability procedure in a functioning constitutional democracy. It then considers the place of amendability procedure in Irish constitutional history. It discusses Ireland's constitutional amendability procedure vis-à-vis European treaty referenda. The chapter concludes by examining the three ways in which Europe's constitutional ambitions are intimately tied up with national constitutional amendability procedures.
Heinz Klug
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199226474
- eISBN:
- 9780191706707
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199226474.003.0007
- Subject:
- Law, Comparative Law
South Africa's emergence as a constitutional democracy after four decades of apartheid and nearly three centuries of colonialism is rightly heralded as a miracle. With 243 sections and seven ...
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South Africa's emergence as a constitutional democracy after four decades of apartheid and nearly three centuries of colonialism is rightly heralded as a miracle. With 243 sections and seven schedules, the constitution of South Africa also represents an attempt to constitutionalise all the hopes, fears, and conflicts of its democratic transition. This process is epitomised by the two-stage constitution-making process in which the conflicting parties first negotiated an ‘interim’ constitution and then, after democratic elections, empowered the new Parliament to sit as a constitutional assembly in order to produce a ‘final’ constitution. This chapter describes South Africa's constitution, the union and apartheid constitutions, democratic transition, constitutional principles, the 1993 interim constitution, regionalism and cooperative governance, rule of law and the Bill of Rights, amending procedures, Constitutional Court, sources of constitutional interpretation, constitution as statute, modes of interpretation, duty to develop the common law and customary law, internal directives for interpretation, problems of interpretation, certification and the problem of future constitutional amendments, and legal legacies and popular experience of the law.Less
South Africa's emergence as a constitutional democracy after four decades of apartheid and nearly three centuries of colonialism is rightly heralded as a miracle. With 243 sections and seven schedules, the constitution of South Africa also represents an attempt to constitutionalise all the hopes, fears, and conflicts of its democratic transition. This process is epitomised by the two-stage constitution-making process in which the conflicting parties first negotiated an ‘interim’ constitution and then, after democratic elections, empowered the new Parliament to sit as a constitutional assembly in order to produce a ‘final’ constitution. This chapter describes South Africa's constitution, the union and apartheid constitutions, democratic transition, constitutional principles, the 1993 interim constitution, regionalism and cooperative governance, rule of law and the Bill of Rights, amending procedures, Constitutional Court, sources of constitutional interpretation, constitution as statute, modes of interpretation, duty to develop the common law and customary law, internal directives for interpretation, problems of interpretation, certification and the problem of future constitutional amendments, and legal legacies and popular experience of the law.
Elizabeth Beaumont
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199940066
- eISBN:
- 9780199369782
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199940066.001.0001
- Subject:
- Political Science, American Politics, Democratization
This book offers a powerful new understanding of American constitutional democracy by focusing on several generations of influential “civic founders”—largely ordinary men and women who sought to ...
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This book offers a powerful new understanding of American constitutional democracy by focusing on several generations of influential “civic founders”—largely ordinary men and women who sought to transform the constitutional order. In re-examining a set of pivotal conflicts over rights, citizenship, and fundamental law, this book demonstrates the profound importance of civic visions and struggles for the Constitution and democratic life. While dominant work on constitutional theory and politics employs largely top-down approaches focused on judges and political leaders, this study shifts attention to the role of engaged citizens and social movements in four crucial eras of constitutional dispute and reinvention: the broad swath of revolutionaries who catalyzed the Declaration of Independence and first state constitutions; the streams of reformers, rebels, and antifederalists who influenced the national Constitution and Bill of Rights; the abolitionists who paved the way for the Reconstruction Amendments, and the suffragists whose battles provoked the Nineteenth Amendment. Through “newspaper wars” and petitions, conventions and speeches, sermons, boycotts and protests, these men and women worked to redefine fundamental law. Challenging established authority, they advocated vital new understandings of popular self-governance, citizenship, civil rights and liberties, civic equality, and justice. Indeed, though largely unacknowledged, these civic reformers shaped the text, ideals, and norms of modern constitutionalism—developing the foundations of American democracy itself. By connecting key theoretical questions to in-depth accounts, this work speaks to constitutional scholars, democratic theorists, and all who are interested in American political development and the promise and challenge of constitutional democracy.Less
This book offers a powerful new understanding of American constitutional democracy by focusing on several generations of influential “civic founders”—largely ordinary men and women who sought to transform the constitutional order. In re-examining a set of pivotal conflicts over rights, citizenship, and fundamental law, this book demonstrates the profound importance of civic visions and struggles for the Constitution and democratic life. While dominant work on constitutional theory and politics employs largely top-down approaches focused on judges and political leaders, this study shifts attention to the role of engaged citizens and social movements in four crucial eras of constitutional dispute and reinvention: the broad swath of revolutionaries who catalyzed the Declaration of Independence and first state constitutions; the streams of reformers, rebels, and antifederalists who influenced the national Constitution and Bill of Rights; the abolitionists who paved the way for the Reconstruction Amendments, and the suffragists whose battles provoked the Nineteenth Amendment. Through “newspaper wars” and petitions, conventions and speeches, sermons, boycotts and protests, these men and women worked to redefine fundamental law. Challenging established authority, they advocated vital new understandings of popular self-governance, citizenship, civil rights and liberties, civic equality, and justice. Indeed, though largely unacknowledged, these civic reformers shaped the text, ideals, and norms of modern constitutionalism—developing the foundations of American democracy itself. By connecting key theoretical questions to in-depth accounts, this work speaks to constitutional scholars, democratic theorists, and all who are interested in American political development and the promise and challenge of constitutional democracy.
Allen Buchanan
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199325382
- eISBN:
- 9780199369300
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199325382.003.0006
- Subject:
- Philosophy, Political Philosophy
This chapter takes up another key issue that has been neglected in the philosophical literature: the problematic claims to legal supremacy that are made on behalf of international legal human rights ...
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This chapter takes up another key issue that has been neglected in the philosophical literature: the problematic claims to legal supremacy that are made on behalf of international legal human rights norms. It sorts out five different worries about claims of legal supremacy and evaluates them. It concludes that there is a serious problem regarding the processes by which some states integrate international human rights law with their own laws: In many cases, acknowledgment of the supremacy of international human rights law does not occur with proper democratic authorization. The chapter concludes that when recognizing the supremacy of international human rights law either alters domestic constitutional arrangements or involves a significant loss of collective self-determination, more democratically robust processes of incorporation than treaty-making as usual are morally required.Less
This chapter takes up another key issue that has been neglected in the philosophical literature: the problematic claims to legal supremacy that are made on behalf of international legal human rights norms. It sorts out five different worries about claims of legal supremacy and evaluates them. It concludes that there is a serious problem regarding the processes by which some states integrate international human rights law with their own laws: In many cases, acknowledgment of the supremacy of international human rights law does not occur with proper democratic authorization. The chapter concludes that when recognizing the supremacy of international human rights law either alters domestic constitutional arrangements or involves a significant loss of collective self-determination, more democratically robust processes of incorporation than treaty-making as usual are morally required.
András Sajó and Renáta Uitz
- Published in print:
- 2017
- Published Online:
- December 2017
- ISBN:
- 9780198732174
- eISBN:
- 9780191796524
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198732174.003.0012
- Subject:
- Law, Constitutional and Administrative Law, Human Rights and Immigration
This chapter examines how constitutions fare in crisis situations, under stress, with special attention to three disturbing scenarios. The classic form of lifting constitutionalism occurs under the ...
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This chapter examines how constitutions fare in crisis situations, under stress, with special attention to three disturbing scenarios. The classic form of lifting constitutionalism occurs under the guise of emergency. The official purpose of emergency powers is simple: to restore constitutional normalcy after a sudden shock. The idea that constitutional democracy should be able to defend itself from its enemies also sounds appealing. However, this militant democracy remains ambiguous and an invitation to and justification for abuse of powers. In closing, the chapter considers the rise of the preventive state and its implications for constitutionalism, especially in governments engaged in a war on terror.Less
This chapter examines how constitutions fare in crisis situations, under stress, with special attention to three disturbing scenarios. The classic form of lifting constitutionalism occurs under the guise of emergency. The official purpose of emergency powers is simple: to restore constitutional normalcy after a sudden shock. The idea that constitutional democracy should be able to defend itself from its enemies also sounds appealing. However, this militant democracy remains ambiguous and an invitation to and justification for abuse of powers. In closing, the chapter considers the rise of the preventive state and its implications for constitutionalism, especially in governments engaged in a war on terror.
T.R.S. Allan
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199267880
- eISBN:
- 9780191707728
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199267880.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This book offers an account of the rule of law that, though primarily an ideal of procedural fairness, governing the manner in which laws and policies should be applied to particular persons, also ...
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This book offers an account of the rule of law that, though primarily an ideal of procedural fairness, governing the manner in which laws and policies should be applied to particular persons, also has important implications for the permissible content of such laws and policies. The rule of law is explained as a set of closely interrelated principles that together make up the core of the doctrine or theory of constitutionalism, and hence a necessary component of any genuine liberal or constitutional democratic polity. The book argues that the procedural ideal of ‘natural justice’ or due process, if it is to provide real protection against arbitrary power, must be accompanied by the equally fundamental ideal of equality. The latter ideal imposes substantive constraints on governmental power, ensuring equal citizenship. This book discusses the rule of law as a rule of reason, constitutionalism in the United Kingdom and A.V. Dicey's ‘rule of law’, equal citizenship, and constitutional democracy.Less
This book offers an account of the rule of law that, though primarily an ideal of procedural fairness, governing the manner in which laws and policies should be applied to particular persons, also has important implications for the permissible content of such laws and policies. The rule of law is explained as a set of closely interrelated principles that together make up the core of the doctrine or theory of constitutionalism, and hence a necessary component of any genuine liberal or constitutional democratic polity. The book argues that the procedural ideal of ‘natural justice’ or due process, if it is to provide real protection against arbitrary power, must be accompanied by the equally fundamental ideal of equality. The latter ideal imposes substantive constraints on governmental power, ensuring equal citizenship. This book discusses the rule of law as a rule of reason, constitutionalism in the United Kingdom and A.V. Dicey's ‘rule of law’, equal citizenship, and constitutional democracy.
Nadia Urbinati
- Published in print:
- 2008
- Published Online:
- January 2012
- ISBN:
- 9780197264317
- eISBN:
- 9780191734472
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197264317.003.0002
- Subject:
- History, European Modern History
This chapter argues that Giuseppe Mazzini's thought belongs to the tradition of cosmopolitanism insofar as he deems the self-determination of autonomous and democratic nations the precondition for a ...
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This chapter argues that Giuseppe Mazzini's thought belongs to the tradition of cosmopolitanism insofar as he deems the self-determination of autonomous and democratic nations the precondition for a peaceful international order. Countering the nationalistic interpretation of his thought, and Giovanni Gentile's reading in particular, it maintains that Mazzini, whose political education occurred in the aftermath of the collapse of Napoleon's empire, believed that the individual (as a primary good and the recipient of equal rights) and the nation (as the collective sovereign that has the power of giving individual rights a legal status) were the two modern agents of political and moral resistance against imperial projects. Beginning with the Abbé de Saint–Pierre, Kant, and the Saint–Simonians, the pact of union and the association of autonomous nations became, in a kind of federative covenant of mutual help and cooperation, the language of European democrats and republicans. In the 20th century it was adopted by those jurists who deemed the consolidation of the rule of law and constitutional democracy intermediary and necessary steps towards a global legal order. Mazzini must be interpreted as belonging to this tradition, though in a peculiar way since he was a cosmopolitan not despite, but because of, his advocacy of the principle of nationality.Less
This chapter argues that Giuseppe Mazzini's thought belongs to the tradition of cosmopolitanism insofar as he deems the self-determination of autonomous and democratic nations the precondition for a peaceful international order. Countering the nationalistic interpretation of his thought, and Giovanni Gentile's reading in particular, it maintains that Mazzini, whose political education occurred in the aftermath of the collapse of Napoleon's empire, believed that the individual (as a primary good and the recipient of equal rights) and the nation (as the collective sovereign that has the power of giving individual rights a legal status) were the two modern agents of political and moral resistance against imperial projects. Beginning with the Abbé de Saint–Pierre, Kant, and the Saint–Simonians, the pact of union and the association of autonomous nations became, in a kind of federative covenant of mutual help and cooperation, the language of European democrats and republicans. In the 20th century it was adopted by those jurists who deemed the consolidation of the rule of law and constitutional democracy intermediary and necessary steps towards a global legal order. Mazzini must be interpreted as belonging to this tradition, though in a peculiar way since he was a cosmopolitan not despite, but because of, his advocacy of the principle of nationality.
Justin Crowe
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691152936
- eISBN:
- 9781400842575
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691152936.001.0001
- Subject:
- Political Science, American Politics
How did the federal judiciary transcend early limitations to become a powerful institution of American governance? How did the Supreme Court move from political irrelevance to political centrality? ...
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How did the federal judiciary transcend early limitations to become a powerful institution of American governance? How did the Supreme Court move from political irrelevance to political centrality? This book uncovers the causes and consequences of judicial institution building in the United States from the commencement of the new government in 1789 through the close of the twentieth century. Explaining why and how the federal judiciary became an independent, autonomous, and powerful political institution, the book moves away from the notion that the judiciary is exceptional in the scheme of American politics, illustrating instead how it is subject to the same architectonic politics as other political institutions. Arguing that judicial institution building is fundamentally based on a series of contested questions regarding institutional design and delegation, the book develops a theory to explain why political actors seek to build the judiciary and the conditions under which they are successful. It both demonstrates how the motivations of institution-builders ranged from substantive policy to partisan and electoral politics to judicial performance, and details how reform was often provoked by substantial changes in the political universe or transformational entrepreneurship by political leaders. Embedding case studies of landmark institution-building episodes within a contextual understanding of each era under consideration, the book presents a historically rich narrative that offers analytically grounded explanations for why judicial institution building was pursued, how it was accomplished, and what—in the broader scheme of American constitutional democracy—it achieved.Less
How did the federal judiciary transcend early limitations to become a powerful institution of American governance? How did the Supreme Court move from political irrelevance to political centrality? This book uncovers the causes and consequences of judicial institution building in the United States from the commencement of the new government in 1789 through the close of the twentieth century. Explaining why and how the federal judiciary became an independent, autonomous, and powerful political institution, the book moves away from the notion that the judiciary is exceptional in the scheme of American politics, illustrating instead how it is subject to the same architectonic politics as other political institutions. Arguing that judicial institution building is fundamentally based on a series of contested questions regarding institutional design and delegation, the book develops a theory to explain why political actors seek to build the judiciary and the conditions under which they are successful. It both demonstrates how the motivations of institution-builders ranged from substantive policy to partisan and electoral politics to judicial performance, and details how reform was often provoked by substantial changes in the political universe or transformational entrepreneurship by political leaders. Embedding case studies of landmark institution-building episodes within a contextual understanding of each era under consideration, the book presents a historically rich narrative that offers analytically grounded explanations for why judicial institution building was pursued, how it was accomplished, and what—in the broader scheme of American constitutional democracy—it achieved.
Richard Sakwa
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814785003
- eISBN:
- 9780814785010
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814785003.003.0004
- Subject:
- Sociology, Politics, Social Movements and Social Change
This chapter characterizes contemporary Russian politics as a struggle between two systems: the formal constitutional order, called the normative state, and the second world of factional conflict and ...
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This chapter characterizes contemporary Russian politics as a struggle between two systems: the formal constitutional order, called the normative state, and the second world of factional conflict and para-constitutional political practices, termed the administrative regime. Much of politics takes place in the charged zone between the two pillars of the dual state. Therefore, it would be incorrect to label contemporary Russia as an authoritarian regime tout court. Not only does it remain formally committed to constitutional democracy and liberal capitalism, these commitments moderate its behavior and allow the formal constitutional framework to structure and influence the conduct of politics. Although many of the regime's actions are authoritarian in spirit, the formal niceties of a constitutional democracy remain preeminent and the legitimating framework for the system as a whole.Less
This chapter characterizes contemporary Russian politics as a struggle between two systems: the formal constitutional order, called the normative state, and the second world of factional conflict and para-constitutional political practices, termed the administrative regime. Much of politics takes place in the charged zone between the two pillars of the dual state. Therefore, it would be incorrect to label contemporary Russia as an authoritarian regime tout court. Not only does it remain formally committed to constitutional democracy and liberal capitalism, these commitments moderate its behavior and allow the formal constitutional framework to structure and influence the conduct of politics. Although many of the regime's actions are authoritarian in spirit, the formal niceties of a constitutional democracy remain preeminent and the legitimating framework for the system as a whole.
Paul O. Carrese
- Published in print:
- 2013
- Published Online:
- March 2016
- ISBN:
- 9780814785935
- eISBN:
- 9780814760918
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814785935.003.0008
- Subject:
- Political Science, Political Theory
This chapter deliberates several paradoxes about loyalty in constitutional liberal democracy and about liberal democracy itself. Abraham Lincoln and Alexis de Tocqueville warned about the tendencies ...
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This chapter deliberates several paradoxes about loyalty in constitutional liberal democracy and about liberal democracy itself. Abraham Lincoln and Alexis de Tocqueville warned about the tendencies of democratic politics to undermine commitment to the rule of law and to formal ideals of rules and professionalism. They shared a particular concern about a greater commitment to “the people” or to moral indignation expressed by citizens than to abstract seemingly elitist ideals like law or professionalism. Moreover, the democratic view of military loyalty would emphasize the experiences of individual soldiers and the aggregate of such feelings in the ranks. Democracy would also draw attention to immediate public opinion about the justice or practicality of a given war or strategy.Less
This chapter deliberates several paradoxes about loyalty in constitutional liberal democracy and about liberal democracy itself. Abraham Lincoln and Alexis de Tocqueville warned about the tendencies of democratic politics to undermine commitment to the rule of law and to formal ideals of rules and professionalism. They shared a particular concern about a greater commitment to “the people” or to moral indignation expressed by citizens than to abstract seemingly elitist ideals like law or professionalism. Moreover, the democratic view of military loyalty would emphasize the experiences of individual soldiers and the aggregate of such feelings in the ranks. Democracy would also draw attention to immediate public opinion about the justice or practicality of a given war or strategy.
András Sajó and Renáta Uitz
- Published in print:
- 2017
- Published Online:
- December 2017
- ISBN:
- 9780198732174
- eISBN:
- 9780191796524
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198732174.003.0002
- Subject:
- Law, Constitutional and Administrative Law, Human Rights and Immigration
This chapter discusses the concept of constitutionalism and its relation to legal constitutions. It explains how the terms ‘constitution’ and ‘constitutionalism’ are used before asking what makes a ...
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This chapter discusses the concept of constitutionalism and its relation to legal constitutions. It explains how the terms ‘constitution’ and ‘constitutionalism’ are used before asking what makes a document (whether an agreement or an imposed charter) into a constitution and whether constitutionalism makes government weak. It considers constitutions as a genre of political self-expression and explores how constitutional bargains allow political transition (from an authoritarian/military regime to more traditional constitutional democracy, or the other way around). It also describes the constitutional arrangements of limited government as calculated, rational reactions to fear. It explores how constitutional order is related to social organization and the function of a constitution as an instrument of pre-commitment. Finally, it explores imperfect constitutions and threats to constitutionalism.Less
This chapter discusses the concept of constitutionalism and its relation to legal constitutions. It explains how the terms ‘constitution’ and ‘constitutionalism’ are used before asking what makes a document (whether an agreement or an imposed charter) into a constitution and whether constitutionalism makes government weak. It considers constitutions as a genre of political self-expression and explores how constitutional bargains allow political transition (from an authoritarian/military regime to more traditional constitutional democracy, or the other way around). It also describes the constitutional arrangements of limited government as calculated, rational reactions to fear. It explores how constitutional order is related to social organization and the function of a constitution as an instrument of pre-commitment. Finally, it explores imperfect constitutions and threats to constitutionalism.
Michel Rosenfeld
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199660384
- eISBN:
- 9780191748264
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199660384.003.0005
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Modern Enlightenment based constitutionalism accords secularism a privileged position: by remaining secular, the public sphere should warrant neutrality among religions and among the latter and ...
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Modern Enlightenment based constitutionalism accords secularism a privileged position: by remaining secular, the public sphere should warrant neutrality among religions and among the latter and non-religious ideologies in order to provide an optimal setting for the realization of freedom of religion as well as of freedom from religion. In recent decades, however, this institutional secularism has come under intense attack from a number of different quarters intent on dislodging it from its constitutional pedestal. These attacks have targeted secularism’s claim to neutrality from religious as well as non-religious perspectives. This Chapter explores the case for “ideological” secularism as one of many conceptions of the good competing against others in a post-secular constitutional polity. Adopting a pluralist perspective, the chapter concludes that under current circumstances ideological secularism is easier to defend than institutional secularism.Less
Modern Enlightenment based constitutionalism accords secularism a privileged position: by remaining secular, the public sphere should warrant neutrality among religions and among the latter and non-religious ideologies in order to provide an optimal setting for the realization of freedom of religion as well as of freedom from religion. In recent decades, however, this institutional secularism has come under intense attack from a number of different quarters intent on dislodging it from its constitutional pedestal. These attacks have targeted secularism’s claim to neutrality from religious as well as non-religious perspectives. This Chapter explores the case for “ideological” secularism as one of many conceptions of the good competing against others in a post-secular constitutional polity. Adopting a pluralist perspective, the chapter concludes that under current circumstances ideological secularism is easier to defend than institutional secularism.
Nadia Urbinati
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199660384
- eISBN:
- 9780191748264
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199660384.003.0002
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The chapter offers a critical evaluation of the post-secularist argument through the analysis of an empirical case that is meant to show the link between secularism or laicité and religious ...
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The chapter offers a critical evaluation of the post-secularist argument through the analysis of an empirical case that is meant to show the link between secularism or laicité and religious pluralism. The Italian case is exemplary of a constitutional democracy whose society does not have religious pluralism, but one dominant religion. It shows that in order to be consistent with the constitutional principle of equal rights a mono-religious society has the need to adopt a more secularist politics but weaker chances to produce a full liberal society.Less
The chapter offers a critical evaluation of the post-secularist argument through the analysis of an empirical case that is meant to show the link between secularism or laicité and religious pluralism. The Italian case is exemplary of a constitutional democracy whose society does not have religious pluralism, but one dominant religion. It shows that in order to be consistent with the constitutional principle of equal rights a mono-religious society has the need to adopt a more secularist politics but weaker chances to produce a full liberal society.
Stephen Tierney
- Published in print:
- 2019
- Published Online:
- April 2019
- ISBN:
- 9780198836544
- eISBN:
- 9780191873737
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198836544.003.0015
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the independence referendum in Scotland, held on September 18, 2014, and its implications for the federal direction of the United Kingdom. The referendum saw 55 percent of Scots ...
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This chapter examines the independence referendum in Scotland, held on September 18, 2014, and its implications for the federal direction of the United Kingdom. The referendum saw 55 percent of Scots say “No” to the question: “Should Scotland be an Independent Country?”. Despite this result, the referendum has sparked a further process of decentralization. The chapter first describes the context that led to the Scottish independence referendum, focusing in particular on the success of the Scottish National Party (SNP) in the parliamentary elections of May 2011 and why the referendum emerged from—and was organized within—the normal contours of constitutional democracy. It then considers the period of constitutional engagement and the outcome of the referendum before concluding with an analysis of some of the lessons that can be drawn from it with regard to constitutional change and the issue of secession.Less
This chapter examines the independence referendum in Scotland, held on September 18, 2014, and its implications for the federal direction of the United Kingdom. The referendum saw 55 percent of Scots say “No” to the question: “Should Scotland be an Independent Country?”. Despite this result, the referendum has sparked a further process of decentralization. The chapter first describes the context that led to the Scottish independence referendum, focusing in particular on the success of the Scottish National Party (SNP) in the parliamentary elections of May 2011 and why the referendum emerged from—and was organized within—the normal contours of constitutional democracy. It then considers the period of constitutional engagement and the outcome of the referendum before concluding with an analysis of some of the lessons that can be drawn from it with regard to constitutional change and the issue of secession.
Noah Benezra Strote
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780300219050
- eISBN:
- 9780300228045
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300219050.003.0002
- Subject:
- History, European Modern History
This chapter explores both sides of the country's deep-seated class conflict, which revealed itself in a public debate about constitutional democracy between the highest levels of the judiciary and ...
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This chapter explores both sides of the country's deep-seated class conflict, which revealed itself in a public debate about constitutional democracy between the highest levels of the judiciary and the leaders of Germany's powerful labor unions. Legal theorists often emphasize the importance of reaching consensus on moral principles for the stability of a constitutional system. In Germany, that consensus did not exist. The political representatives whom Germans elected after the Great War to draft a constitution could agree that the new German state should be a republic as opposed to a monarchy. However, they could not find common ground regarding as foundational a question as the authority of the three branches of government and their proper relationship to one another. Most important, minds diverged on whether the state should embrace parliamentary supremacy: the idea that the legislative branch, not the judicial or executive, should enjoy final authority in national decision making.Less
This chapter explores both sides of the country's deep-seated class conflict, which revealed itself in a public debate about constitutional democracy between the highest levels of the judiciary and the leaders of Germany's powerful labor unions. Legal theorists often emphasize the importance of reaching consensus on moral principles for the stability of a constitutional system. In Germany, that consensus did not exist. The political representatives whom Germans elected after the Great War to draft a constitution could agree that the new German state should be a republic as opposed to a monarchy. However, they could not find common ground regarding as foundational a question as the authority of the three branches of government and their proper relationship to one another. Most important, minds diverged on whether the state should embrace parliamentary supremacy: the idea that the legislative branch, not the judicial or executive, should enjoy final authority in national decision making.
Angélica Maria Bernal
- Published in print:
- 2017
- Published Online:
- July 2017
- ISBN:
- 9780190494223
- eISBN:
- 9780190494247
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190494223.003.0001
- Subject:
- Political Science, Political Theory, Democratization
Foundings have long captured the political imagination and continue to be a pervasive element of contemporary politics as statesmen, citizens, and new social movements wage many a political battle ...
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Foundings have long captured the political imagination and continue to be a pervasive element of contemporary politics as statesmen, citizens, and new social movements wage many a political battle through appeals to shared origins, Founding Fathers, and foundational principles. Despite their ubiquity in democratic politics, rarely do we stop to examine this notion. Reviewing the uses of this term in contemporary political and constitutional discourse, I introduce the problem addressed by this book: the dominant vision of founding as an authoritative binding origin. The introduction explicates the problems with this view and makes the case for why it is important to reconsider it. Against this view, the book will offer an alternative vision centered on the disaggregation of foundings from originary authority. The introduction outlines this vision and how it will be developed throughout the book, explicating the use of cases that complicate the relationship between foundings and origins.Less
Foundings have long captured the political imagination and continue to be a pervasive element of contemporary politics as statesmen, citizens, and new social movements wage many a political battle through appeals to shared origins, Founding Fathers, and foundational principles. Despite their ubiquity in democratic politics, rarely do we stop to examine this notion. Reviewing the uses of this term in contemporary political and constitutional discourse, I introduce the problem addressed by this book: the dominant vision of founding as an authoritative binding origin. The introduction explicates the problems with this view and makes the case for why it is important to reconsider it. Against this view, the book will offer an alternative vision centered on the disaggregation of foundings from originary authority. The introduction outlines this vision and how it will be developed throughout the book, explicating the use of cases that complicate the relationship between foundings and origins.
