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The Pre-federal State Constitutions: The Founding Decade

Robert F. Williams

in The Law of American State Constitutions

Most of the American states adopted constitutions in the decade prior to the federal constitutional convention. There were two major “waves” of state constitution-making. The first wave was hasty, ... More

Most of the American states adopted constitutions in the decade prior to the federal constitutional convention. There were two major “waves” of state constitution-making. The first wave was hasty, generally not based on elected constitutional conventions, and the constitutions had little in the way of checks and balances. The chapter uses the Pennsylvania constitution to illustrate this wave. The second wave was more deliberate, often utilized elected constitutional conventions, and developed constitutions with more in the way of checks and balances. The Massachusetts constitution is used to illustrate this wave. Early constitution-making in each of the states is briefly reviewed, in light of these differing philosophies. Finally, the chapter reviews the influences of this “founding decade” of state constitution-making on the development of the federal Constitution, concluding that the Pennsylvania example was rejected and in Massachusetts example was adopted.Less

Federal Limits on State Constitutions

Robert F. Williams

in The Law of American State Constitutions

This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions ... More

This chapter analyzes the various ways in which state constitutions are limited by the federal Constitution and federal law, which are the supreme law of the land. Provisions in state constitutions can violate not only the federal Constitution itself, but also federal statutory law, administrative regulations, federal common law, and even treaties and interstate compacts. In addition, enabling acts passed by Congress to facilitate the admission of new states can have continuing, limiting effect on states' constitutions to the extent that such federal provisions are based on ongoing congressional power (not just the power to admit new states). In some contexts federal law can preempt the provisions of state constitutions. All of these ways in which federal law limits the content of state constitutions are enforceable by the courts.Less

Austria

Elisabeth Handl-Petz

in International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion

Austria entered the European Union in 1995 and is a member of the United Nations. It participates, inter alia, in the Organization for Economic Co-operation and Development and the Organization for ... More

Austria entered the European Union in 1995 and is a member of the United Nations. It participates, inter alia, in the Organization for Economic Co-operation and Development and the Organization for Security and Co-operation in Europe. Austria also accepts compulsory jurisdiction of the International Court of Justice. Article 44 of the Federal Constitution does not require that constitutional amendments be incorporated into the text of the Federal Constitution. Thus, over the years, numerous federal constitutional laws (Bundesverfassungsgesetze) and federal statutes containing constitutional provisions have been enacted. Moreover, many international agreements and provisions in international agreements have been given constitutional status. Therefore, the structure of Austrian federal constitutional law is fragmented. Nevertheless, the Federal Constitution is the core document for provisions relating to international law.Less

The (Ambivalent) Tradition of Equality in America

Kay Lehman Schlozman, Sidney Verba, and Henry E. Brady

in The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy

This chapter considers the place of equality, in all its complexity, in the American civic culture. It draws evidence from several sources: the debates occasioned by the drafting and ratification of ... More

This chapter considers the place of equality, in all its complexity, in the American civic culture. It draws evidence from several sources: the debates occasioned by the drafting and ratification of the federal constitution, Supreme Court decisions, the fifty constitutions of the separate states, and public opinion as measured in surveys over the past several decades. In considering American understandings of equality, this chapter moves beyond an emphasis on equality of political voice to encompass the multiple aspects of the concept of equality. A brief look at these sources provides a context of normative debate in which to understand the empirical evidence that forms the bulk of this work and suggests that, while Americans are egalitarians, they are somewhat ambivalent egalitarians.Less

The Foundations of the New Federal Models: Three Case Studies

Michael Burgess

in In Search of the Federal Spirit: New Comparative Empirical and Theoretical Perspectives

The chapter provides a short survey of the conceptual foundations of the models by bringing into focus democratisation and democracy promotion, political trust and political socialisation before it ... More

The chapter provides a short survey of the conceptual foundations of the models by bringing into focus democratisation and democracy promotion, political trust and political socialisation before it looks briefly at the empirical bases of three of the new federal models, namely, Ethiopia, Bosnia-Herzegovina and Iraq. These case studies have been selected because they are deemed to share many features characteristic of a distinctive group of federal democracies within the new federal models. They are identified as the “new” new federal models for being post-conflict states with deeply divided societies in which the international community has played a significant role in different capacities in federal state formation. It concludes with a number of important empirical and theoretical perspectives that furnish the basis for the conclusion to the book.Less

Kenneth C. Wheare and the Federal Principle

Michael Burgess

in In Search of the Federal Spirit: New Comparative Empirical and Theoretical Perspectives

The chapter provides a brief intellectual biography of Wheare and examines in detail his major contribution to the study of federalism. His distinctive approach to and understanding of federalism is ... More

The chapter provides a brief intellectual biography of Wheare and examines in detail his major contribution to the study of federalism. His distinctive approach to and understanding of federalism is revealed and a textual exegesis of his major works on federalism is conducted that furnishes the basis for identifying the normative federal values and principles generally implicit in his work on the federal principle. This investigative approach clears the way for the federal spirit to be located at the core of his understanding of federalism.Less

William S. Livingston and Federal Society

Michael Burgess

in In Search of the Federal Spirit: New Comparative Empirical and Theoretical Perspectives

The chapter provides a brief intellectual biography of Livingston and examines in detail his major contribution to the study of federalism. His distinctive approach to and understanding of federalism ... More

The chapter provides a brief intellectual biography of Livingston and examines in detail his major contribution to the study of federalism. His distinctive approach to and understanding of federalism is revealed and a textual exegesis of his major works on federalism is conducted. This shows his work to have developed in an unexpected way which follows Wheare’s thinking more than it does the idea of federal society. But Livingston’s overall contribution, if disappointing in the gap between his claims and his conclusions, is much more explicit about the federal spirit than Wheare in the clarity with which he underlines its meaning and value.Less

The Formation of the Federal Republic

in “We Are Now the True Spaniards”: Sovereignty, Revolution, Independence, and the Emergence of the Federal Republic of Mexico, 1808-1824

This chapter explains how Mexico, utilizing the institutions established by the Constitution of Cádiz, formed a federal republic in 1824. The Mexican Constitution of 1824 was based on the Hispanic ... More

This chapter explains how Mexico, utilizing the institutions established by the Constitution of Cádiz, formed a federal republic in 1824. The Mexican Constitution of 1824 was based on the Hispanic Constitution of 1812 because distinguished novohispanos, who had participated in writing the Charter of Cádiz, wrote the Mexican federal constitution. Mexico implemented the institutions created by the Constitution of 1812 more fully than any other nation in the Hispanic world, including Spain itself. Indeed, most Mexicans considered the Charter of Cádiz their first constitution.Less

One Vote, One Value v. The Parliamentary Tradition—The Federal Experience

Anthony Sir Mason

in The Golden Metwand and the Crooked Cord: Essays in Honour of Sir William Wade QC

Sir William Wade has been the leading modern exponent of the doctrine of parliamentary sovereignty at a time when the doctrine has come under increasing challenge. In a publication designed to ... More

Sir William Wade has been the leading modern exponent of the doctrine of parliamentary sovereignty at a time when the doctrine has come under increasing challenge. In a publication designed to commemorate Sir William's remarkable contribution to the development and understanding of public law, it is opportune to take account of how, in the old-established federal systems in the United States, Canada and Australia, restrictions, albeit limited in Canada and Australia, have developed to limit the power of legislatures to deal with voting power. This chapter discusses the interpretation which has been given to the provisions relating to voting in the three federal constitutions and the part which the parliamentary tradition has played in the evolution of the interpretation that has been accepted in Australia and Canada.Less

Constitutional Nature

Signe Rehling Larsen

in The Constitutional Theory of the Federation and the European Union

This chapter provides an outline of the constitutional theory of the federation and demonstrates how this theory provides an answer to the question of the legal and political nature of the EU. The ... More

This chapter provides an outline of the constitutional theory of the federation and demonstrates how this theory provides an answer to the question of the legal and political nature of the EU. The federation is a discrete political form that transcends the ‘statist’ categories of Staatenbund (confederation) and Bundesstaat (federal state). These categories still obscure both federal theory and EU law scholarship, including the ‘sui generis’ thesis. The federation, or federal union, is founded on a federal compact (Bundesvertrag) between its Member States. This compact is a constitutional contract (Verfassungsvertrag) that gives birth to a new political entity, the Union, and transforms the Member States’ constitutions politically. The federation is a double political existence, consisting of the Union and the Member States, and it therefore has twin sources of authority. The federation is a genuine political order characterized by the internal absence, contestation or repression of sovereignty.Less

Old Principles, New Constitutions, 1783–1790

Kenneth Owen

in Political Community in Revolutionary Pennsylvania, 1774-1800

This chapter investigates the period between the federal Constitutional Convention of 1787 and the revision of the Pennsylvania State Constitution in 1790. Debates over the ratification of the US ... More

This chapter investigates the period between the federal Constitutional Convention of 1787 and the revision of the Pennsylvania State Constitution in 1790. Debates over the ratification of the US Constitution grew out of and reflected long-running Pennsylvanian debates over ideal forms of government. These debates—rhetorically and literally violent—saw Federalists adopt the language of their Anti-Federalist opponents in using popular sovereignty and a participatory political culture to justify their new frame of government. This widened debates on governmental reform to include extra-governmental activism alongside formal structures of government. Thus the success of Pennsylvanian Federalists in revising the state constitution in 1790 was only possible through legitimizing extra-governmental mobilization—which in turn ensured that the spirit of the 1776 constitution remained at the heart of Pennsylvanian politics.Less

Bargaining, Control, and Commitment

M. Govinda Rao and Nirvikar Singh

in The Political Economy of Federalism in India

This chapter evaluates the role of bargaining, control, and commitment in shaping the structure of the Indian federation and in its working. It identifies the factors that have led to the strong ... More

This chapter evaluates the role of bargaining, control, and commitment in shaping the structure of the Indian federation and in its working. It identifies the factors that have led to the strong centralizing features of the federal constitution that was crafted after independence. It discusses the asymmetries in India’s federal structures, problems of commitment for the Central government, and issues of bargaining between the Centre and states, and between the Centre and various constituent groups.Less

The Contradictions of Democracy in American Institutions and Practices

Laura F. Edwards

in Re-imagining Democracy in the Age of Revolutions: America, France, Britain, Ireland 1750-1850

The American Revolution embodied conflicting impulses. So did the post-revolutionary institutional order, which was bedevilled by tensions between efforts to limit and to expand popular participation ... More

The American Revolution embodied conflicting impulses. So did the post-revolutionary institutional order, which was bedevilled by tensions between efforts to limit and to expand popular participation in government. These tensions played out in relationships between people, state governments, and federal institutions. Those who devised constitutions were wary of concentrating power, but also of leaving too much power to the people; the weakness of government in practice, and the diffusion of ideas of popular sovereignty, encouraged many to assert themselves, including some who lacked formal rights. Revisions to old and the drafting of new state constitutions repeatedly revealed these tensions. The consolidation of authority at state level during the early nineteenth century profoundly affected relations between people and government. Formal ascriptions of right – as between men and women, or enslaved and free people - played a growing part in determining who had power not only in government but in society.Less

The Enforcement of Federal Law in the Belgian Federal State

Céline Romainville and Marc Verdussen

in The Enforcement of EU Law and Values: Ensuring Member States' Compliance

This chapter looks at enforcement in the Belgian federal system. It first introduces the dynamics of Belgian federalism, how it channels processes of defiance to some extent through a dismantling of ... More

This chapter looks at enforcement in the Belgian federal system. It first introduces the dynamics of Belgian federalism, how it channels processes of defiance to some extent through a dismantling of the federal state, and how it avoids the issue of enforcement of federal law by federate entities by reference to the exclusivity and equality principles. The chapter then analyses the exceptional situations where the enforcement of federal law is clearly provided for—concurrently through framework competences and parallel competences. It likewise analyses expressions of defiance in the framework of cooperative Belgian federalism, before turning to the power of the Constitutional Court to sanction violations of the enforcement of federal law. Finally, the chapter examines the scenario where defiance is brought to a higher level, with the flagrant and explicit disrespect by the federate entities of the Federal Constitution and of the judgments of the Constitutional Courts.Less

Constitutional Law and Civil Liberties

Lawrence M. Friedman and Grant M. Hayden

in American Law: An Introduction

This chapter is about constitutional law and civil liberties. Both the federal constitution and state constitutions are discussed. A main focus of the chapter is on the power of judicial review, its ... More

This chapter is about constitutional law and civil liberties. Both the federal constitution and state constitutions are discussed. A main focus of the chapter is on the power of judicial review, its history and current practice. The chapter also examines the expansion of constitutional rights and civil liberties, especially in the areas of free speech and race discrimination. Finally, the chapter looks at how the U.S. constitution and system of judicial review have served as a model for many other countries.Less

Administrative Procedure and Judicial Review in Switzerland: Thierry Tanquerel

Thierry Tanquerel

in Judicial Review of Administration in Europe

This chapter examines administrative procedure and judicial review in Switzerland. Article 29a of the Federal Constitution (Cst.) provides that 'In a legal dispute, every person has the right to have ... More

This chapter examines administrative procedure and judicial review in Switzerland. Article 29a of the Federal Constitution (Cst.) provides that 'In a legal dispute, every person has the right to have their case determined by a judicial authority. The Confederation and the Cantons may by law preclude the determination by the courts of certain exceptional categories of case'. It is widely recognized that Article 29a Cst. grants the right of judicial review of administrative action to everyone whose rights or obligations are affected by such an action. Judicial review of administrative action is entrusted partly to courts with general jurisdiction, partly to specialized administrative courts, and partly to specific independent appellate committees. As a general principle, procedural rights are deemed 'formal rights' by the Federal Tribunal, whose violation would cause the act or the measure at stake to be quashed irrespective of its substantive merits. However, there are certain acts or measures issued by Swiss authorities which escape judicial control, when those acts or measures are primarily of a political nature. When an act is appealed before a court, the only question at stake is the validity of the act. If the court finds it unlawful for procedural or substantive reasons, it will either quash it or modify it to make it lawful.Less