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The New Judicial Federalism

Robert F. Williams

in The Law of American State Constitutions

This chapter discusses the evolution of the New Judicial Federalism, reflecting the realization that state constitutional rights provisions can provide, or be interpreted to provide, more rights than ... More

This chapter discusses the evolution of the New Judicial Federalism, reflecting the realization that state constitutional rights provisions can provide, or be interpreted to provide, more rights than the federal Constitution's national minimum standards. It describes the wide variety of state constitutional rights provisions, together with the various stages of the New Judicial Federalism beginning in the 1970s. These developments consisted of state high court decisions, law review literature, including influential articles written by state judges as well as Justice William Brennan, Jr., and conferences. Also, the chapter describes the backlash against the New Judicial Federalism and the awareness that expansive judicial interpretations of state constitutions could be overturned by amendments to the texts of state constitutions. The chapter concludes with the suggestion that a true dialogue between state and federal courts concerning constitutional rights might be possible.Less

Introduction

Robert F. Williams

in The Law of American State Constitutions

This introductory chapter surveys the rise in importance of state constitutional law, the evolving recognition of state constitutions by scholars, lawyers, and judges, and the importance of the book ... More

This introductory chapter surveys the rise in importance of state constitutional law, the evolving recognition of state constitutions by scholars, lawyers, and judges, and the importance of the book at this point in time. The objectives of the book are outlined, and its methodology is explained.Less

Civil Society and the State

André Béteille

in Democracy and Its Institutions

In a constitutional democracy, state and civil society are, at least in principle, complementary rather than substitutes for each other or dedicated adversaries. The constitutional state based on the ... More

In a constitutional democracy, state and civil society are, at least in principle, complementary rather than substitutes for each other or dedicated adversaries. The constitutional state based on the impersonal rule of law plays a crucial role in contemporary discussions of state and civil society. Civil society was at one point accompanied not only by the pursuit of individual interest but also by the development of a new type of associational life. Both Georg Wilhelm Friedrich Hegel and Karl Marx used the term ‘Bürgerlichegesellschaft’, which can mean either ‘civil society’ or ‘bourgeois society’. The historical process that has led to the emergence of civil society in various parts of the world may be understood in the framework of three specific phenomena that are homologous and interrelated: constitutional state, universal citizenship, and open and secular institutions.Less

Constitutional Controls on Delegation

Catherine M Donnelly

in Delegation of Governmental Power to Private Parties: A Comparative Perspective

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This ... More

A central issue in the discussion of delegation of governmental power to private actors is the extent to which governmental actors enjoy a capacity to delegate their power in the first instance. This chapter examines the role of constitutional law in limiting this delegation capacity. The experiences of the three jurisdictions are examined according to three factors: first, the constitutional source of restraint; second, control technique; and third, judicial attitudes to the appropriateness of intervening in governance choices that may be perceived to be taken more appropriately by the legislature or executive. Close scrutiny is given to the US federal non-delegation doctrine; equivalent robust state non-delegation doctrines, and in particular, the non-delegation doctrine developed by the Texas Supreme Court in the Boll Weevil case; the limitations of the UK's unwritten constitution in this context; and the ECJ's seminal case on delegation, Meroni v High Authority.Less

The Failure of Discourse Ethics and the Theory of Communicative Action in Their Attempted Empirical Demonstration and Application to Politics, Law and Society

Uwe Steinhoff

in The Philosophy of Jürgen Habermas: A Critical Introduction

The chapter provides a detailed description and critical discussion of Habermas' attempts to make the theory of communicative action and discourse ethics fruitful beyond the narrower moral and ... More

The chapter provides a detailed description and critical discussion of Habermas' attempts to make the theory of communicative action and discourse ethics fruitful beyond the narrower moral and ethical realm and, conversely, to find confirmation for it in empirical theories. Habermas refers to the research areas of psychology and social evolution and to political and sociological issues around which the “Critical Theory of Society” is to take concrete form. Concerning psychology, he develops or adopts theories of ego-development, moral development and “communication pathologies”. As it concerns social evolution he proposes theories of hominisation and socio-cultural evolution. In dealing with the political and sociological issues he is most productive, offering a theory of social order, his famous colonialisation thesis, his discourse theory of law and the constitutional state, and his theory of modernity.Less

Backlash and Advancement

Jeffrey M. Shaman

in Equality and Liberty in the Golden Age of State Constitutional Law

A significant number of states have exercised their sovereign independence to create a substantial body of state constitutional law establishing rights of equality and liberty well beyond those ... More

A significant number of states have exercised their sovereign independence to create a substantial body of state constitutional law establishing rights of equality and liberty well beyond those recognized under the Federal Constitution. However, the advances of equality and liberty achieved through the New Judicial Federalism have, in some instances, been greeted with disapproval. Some states have encountered a legislative or popular backlash against the recognition of certain new rights by state courts. In other areas, though, public acceptance has come more readily, and progress has been more constant. Overall, the New Judicial Federalism seems to be steadily progressing. State courts have invested equality and liberty with a new meaning that has made for a more just society. With its course well set, the advancement of equality and liberty will endure as the great attainment of the Golden Age of State Constitutional Law.Less

Separation of Powers Beyond the State

Christoph Möllers

in The Three Branches: A Comparative Model of Separation of Powers

This chapter first addresses the question of how organizations located on a regulatory level beyond the state acquire their legitimacy. The two classic answers are: democratic legitimacy through the ... More

This chapter first addresses the question of how organizations located on a regulatory level beyond the state acquire their legitimacy. The two classic answers are: democratic legitimacy through the participation of democratic state governments and individual legitimacy through international courts. Both of these answers raise further questions, for themselves and also in relation to one another. The chapter then analyzes the functioning of power-separation of both the national and the international level. It considers the internationalized constitutional state, European integration, and international law.Less

Global Water Governance and the Rise of the Constitutional Regulatory State in Colombia

René Urueña

in The Rise of the Regulatory State of the South: Infrastructure and Development in Emerging Economies

This chapter examines water supply regulation in Colombia. It begins with an overview of the political and institutional landscape in Colombia. It then explores the emergence of water supply as a ... More

This chapter examines water supply regulation in Colombia. It begins with an overview of the political and institutional landscape in Colombia. It then explores the emergence of water supply as a global issue and explains the central traits of global water governance (GWG). Next, it considers the specific mechanisms through which GWG is implemented in Colombia, factoring in the notion of the ‘constitutional regulatory state’, where the mindset of efficiency-based regulation is balanced by a human rights discourse, represented in this country by the Constitutional Court. Finally, two specific instances of the practice of the constitutional regulatory state are explored. First, the Constitutional Court's interpretation of ‘efficiency’ is used to analyse the role of the regulatory mindset in the Court' s reasoning. Second, the debate on the human right to water is used to explore the impact of neoconstitutionalism on the regulator.Less

The Benefits of Intersystemic Adjudication

in Polyphonic Federalism: Toward the Protection of Fundamental Rights

This chapter demonstrates how intersystemic adjudication could fulfill the promise of polyphony. Federalism can ensure that the government of the United States continues to deserve the “high ... More

This chapter demonstrates how intersystemic adjudication could fulfill the promise of polyphony. Federalism can ensure that the government of the United States continues to deserve the “high appellation” of “a government of laws.” The United States Constitution did not mandate a dual court system. State constitutional litigation represents one of the most important areas for the vindication of individual rights. The role of federal courts in interpreting the California Constitution shows some of the productive possibilities that a polyphonic approach allows. The legislative and executive branches of the federal government provide alternative avenues for the pursuit of policy preferences. The decision of the United States Supreme Court in Erie has served as a focus of scholarly resistance to intersystemic adjudication. Erie clarified that the state high court was the supreme interpreter of state law.Less

Sovereignty in the Constitutional State

Dieter Grimm

in Sovereignty: The Origin and Future of a Political and Legal Concept

This chapter studies the relationship between sovereignty and the constitutional state. The American and French revolutions definitively established the project of modern constitutionalism, and the ... More

This chapter studies the relationship between sovereignty and the constitutional state. The American and French revolutions definitively established the project of modern constitutionalism, and the emergence of the constitutional state affected sovereignty. The constitutional state did not abandon sovereignty; however, one of its characteristics is that it does not recognize any supreme power. The meaning of the modern constitution is, in fact, the comprehensive regulation of the establishment and exercise of state authority as well as public authority. The regulation of public authority intended by the constitution required that none of the powers be above the law. Since law had to be made, the portion of law that constituted and regulated state power had to be attributed to a different source. Only the people were available, since any other source of legitimacy would have endangered the function of the constitution. Thus, sovereignty in the fully formed constitutional state of popular sovereignty.Less

Constitutional Violence and Enlightenment Thought

David William Bates

in States of War: Enlightenment Origins of the Political

This introductory chapter begins with a brief discussion of how crises of the early twenty-first century, such as the war, terrorism, and economic catastrophe, have focused renewed attention on the ... More

This introductory chapter begins with a brief discussion of how crises of the early twenty-first century, such as the war, terrorism, and economic catastrophe, have focused renewed attention on the inherent conflict between the legal concepts of state power and more existential visions of political authority. It argues that this conflict has a specific historical origin and must be examined in that context in order to understand the risks and possibilities inherent in our contemporary moment of crisis. Because this deep conflict has its origins in the Enlightenment—when the modern constitutional state was first conceived in an era of absolutist, centralizing sovereign rule—a return to the Enlightenment has the potential to clarify our own thinking about the problematic relationships that link security regimes with the foundational rule of law. The remainder of the chapter deals with Enlighten thinking about the political and its relationship with the history of political ideas and modern states.Less

The Constitution of 1848: Reconstructing Government, Balancing Powers, Oppressing Free Blacks

Frank Cicero Jr.

in Creating the Land of Lincoln: The History and Constitutions of Illinois, 1778-1870

Chapter 4 focuses on the 1847 Illinois state constitutional convention and the constitution approved by voters in 1848. Democrats comprised a majority of delegates, but Whigs built many successful ... More

Chapter 4 focuses on the 1847 Illinois state constitutional convention and the constitution approved by voters in 1848. Democrats comprised a majority of delegates, but Whigs built many successful coalitions. The new constitution sought greater balance of governmental powers, reducing the legislature’s appointive power, bestowing on the governor a weak veto power, and calling for direct election of judges. Age and residency requirements were specified for government service; citizenship was required of voters. Two contentious provisions put separately to voters were ultimately approved: one prohibiting free blacks from immigrating to the state and one calling for a property tax to relieve the state’s debt. With the 1848 constitution, Illinois transitioned from a frontier to a modern state.Less

Habermas's “Reconstruction” of Modern Law

in Habermas: The Discourse Theory of Law and Democracy

Jürgen Habermas's analysis of modern law is based on the social condition that he calls the “rationalization of the lifeworld.” He argues that through this process of rationalization, the cultural ... More

Jürgen Habermas's analysis of modern law is based on the social condition that he calls the “rationalization of the lifeworld.” He argues that through this process of rationalization, the cultural tradition has been largely secularized and has lost much of its power to prescribe in advance the division of labor and social roles. While he views communicative action as a means to coordinate action and integrate society, he insists that it is not the only mechanism. These difficulties are addressed by modern law, which Habermas argues has the power to steer actors' choices through sanctions and has claim to legitimacy. The idea that a legal order's legitimacy buttresses its long-run stability is a key assumption of social theory and features prominently in Max Weber's sociology of law. This chapter explores Habermas's reconstruction of modern law, as well as the tensions between ideal and empirical validity and the tensions between legitimacy and enforcement. It also considers Habermas's argument about the tension between facticity and validity, his account of the system of rights, and his notion of the constitutional state.Less

The Constitution of 1870: Progressive Foundation for a Century

Frank Cicero Jr.

in Creating the Land of Lincoln: The History and Constitutions of Illinois, 1778-1870

Chapter 7 summarizes debates of the 1869–70 Illinois state constitutional convention, whose blend of representatives from Democratic, Republican, and People’s Parties yielded a relatively nonpartisan ... More

Chapter 7 summarizes debates of the 1869–70 Illinois state constitutional convention, whose blend of representatives from Democratic, Republican, and People’s Parties yielded a relatively nonpartisan outcome. The balance of governmental powers was adjusted so that the executive branch had a stronger veto, the legislative branch was barred from passing special-interest legislation, and the judicial system was enhanced with more courts and judges, a particular benefit to populous Cook County, home to the economic powerhouse of Chicago. Other major issues included African Americans’ civil rights and state management of railroads and warehouses. A progressive approach to minority representation sought to bridge sharp political divisions between north and south. The proposed 1870 constitution was ratified by the voters and remained in force for a century.Less

Advancing Civic Preparation through the State Courts

Michael A. Rebell

in Flunking Democracy: Schools, Courts, and Civic Participation

Chapter Six proposes remedies that the state courts should consider in fiscal equity and education adequacy cases in order to promote civic preparation in the schools. These suggestions include ... More

Chapter Six proposes remedies that the state courts should consider in fiscal equity and education adequacy cases in order to promote civic preparation in the schools. These suggestions include issuing general remedial decrees that mandate greater attention to civic preparation needs but vest substantial discretion in state officials to develop and implement appropriate standards, to provide necessary resources, and to assess results. Some state courts might also consider issuing more specific remedial orders, depending on the strength of the evidence in particular cases. For example, they might require schools to provide instruction in media literacy or to offer an appropriate range of extracurricular activities and opportunities for involvement in community activities to all students. The chapter also discusses actions that state courts can take to promote increased diversity, desegregation, and inclusion.Less

On the Relations Between the Secular Liberal State and Religion

Jürgen Habermas

in Political Theologies: Public Religions in a Post-Secular World

Is the liberal secular state nourished by normative preconditions that it cannot itself guarantee? The question expresses doubt that the democratic constitutional state ... More

Is the liberal secular state nourished by normative preconditions that it cannot itself guarantee? The question expresses doubt that the democratic constitutional state can renew the normative preconditions of its existence out of its own resources. It also voices the conjecture that the state is dependent upon autochthonous conceptual or religious traditions—in any case, collectively binding ethical traditions. This chapter assumes that the constitution of the liberal state is self-sufficient with regard to its need for legitimation. The ideological neutrality of state authority, which guarantees the same ethical freedoms for every citizen, is incompatible with the political generalization of a secularistic world-view. Secularized citizens, insofar as they act in their role as citizens of a state, may neither deny out of hand the potential for truth in religious conceptions of the world nor dispute the right of believing fellow citizens to make contributions to public discussions that are phrased in religious language.Less

Hegel as Political Educator

Dana Villa

in Teachers of the People: Political Education in Rousseau, Hegel, Tocqueville, and Mill

This chapter investigates the contribution of Hegel's political philosophy to civic education. Hegel hardly thinks that citizens are capable of teaching themselves (as does Tocqueville). Rather, the ... More

This chapter investigates the contribution of Hegel's political philosophy to civic education. Hegel hardly thinks that citizens are capable of teaching themselves (as does Tocqueville). Rather, the Philosophy of Right presents a model of civic integration that moves from the sphere of the family, to that of civil society, and thence to the political sphere of the state. Hegel's goal is to show how the individual's passage through these spheres—through ever-widening circles of association—effectively mediates his particular interests with the general interest of the political community. Hegel's constitutional state is "tutorial" in the sense that its workings and explication create a political awareness on the part of individual citizens, an awareness that makes it possible for them to see themselves in modern public institutions and practices. This "seeing oneself in another" is the reality of freedom. The chapter elucidates this through readings of the Phenomenology's master-slave dialectic, the lectures on the philosophy of history, and the Philosophy of Right. I show how Hegel's model of human Bildung, though grounded in existential struggle, progressively sublimates conflict as it moves from the level of the ego's individuation, to that of the progress of civilization, and finally to the modern "rational" state itself.Less

The Concept and Problems of the Constitutional State [1997]

Mirjam Künkler and Tine Stein

in Constitutional and Political Theory: Selected Writings

Böckenförde provides an in-depth exploration of the term ‘Verfassungsstaat’ (constitutional state). He investigates the historical roots of the term ‘constitution’ and differentiates between two ... More

Böckenförde provides an in-depth exploration of the term ‘Verfassungsstaat’ (constitutional state). He investigates the historical roots of the term ‘constitution’ and differentiates between two dimensions: ‘constitution’ in a formal sense as the primary binding law for all state action, and ‘constitution’ in a more substantive sense as the final sovereign authority. If a conflict over the appropriate meaning of general constitutional rules arises, the constitution must designate the final power of interpretation and of enforcement (raising questions about the locus of power with regard to legitimacy by the people). Finally, Böckenförde examines the relationship between the state and the constitution. Here, he supports Carl Schmitt’s notion that there must first be a political entity, embodied in the state, before a constitution can be promulgated. Böckenförde closes with some critical remarks about those who equate state and constitution, neglecting the dialectic between power and the law.Less