Suchergebnisse

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves. But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably be reconciled with original understanding. For example, it is now increasingly acknowledged "that those who wrote and ratified the Fourteenth Amendment believed that it would permit racial segregation in public schools." Consequently, unless they are willing to see it overruled, Brown v. Board of Education presents deep difficulties for those who insist upon original understanding as the only legitimate canon for constitutional adjudication. Brown will not be overruled, just as the New Deal and the administrative state, both developments whose constitutionality – from an originalist's perspective – is also highly questionable, will not be declared unlawful. Thus, the originalist confronts a fundamental difficulty. Can originalism make sense out of a constitutional order that varies significantly from its core legitimating principle but that cannot be judicially overruled in the name of a return to original understanding? This essay considers whether stare decisis can provide an acceptable ground for preserving the existing constitutional edifice without simultaneously licensing further departures from original understanding. Part I of this essay defends the claim that there have been significant and irreversible departures from original understanding. In Part II, the essay begins exploring stare decisis as a way of resolving the normative implications of originalism's inability to provide a descriptively plausible account of much of the present constitutional order. Part II argues that originalists must acknowledge that in the process of constitutional adjudication stare decisis plays a very large role. Next, Parts III and IV examine the possible sources and content of a principle that would privilege precedent above original understanding as a rule of decision in constitutional adjudication. Finally, in Parts V and VI, the essay returns to originalism. These parts ask what remains of originalism's normative appeal if stare decisis is invoked to explain and legitimate so much constitutional change. Indeed, what remains of the fundamental idea of a written constitution? In sum, does our Bicentennial Constitution require that we rethink the very meaning of a written constitution? I am forced to conclude that the original understanding must give way in the face of transformative or longstanding precedent, a conclusion that in turn may make inevitable the unsettling acknowledgement that originalism and stare decisis themselves are but two among several means of maintaining political stability and continuity in society.

Item 717-A-1. ; "February 19, 1988." ; Shipping list no.: 88-439-P. ; Mode of access: Internet.

Abstract
Many modern constitutional systems, despite the prevalence of adult suffrage, forbid certain classes of person from participation in the most important aspects of the democratic process, whether by withholding the vote from them or by denying them the right to hold office. While the former has received a considerable amount of attention in the literature, the latter has been comparatively neglected. The aim of the article is to redress this imbalance. It starts by offering, quite generally, a taxonomy of such bans. It then appraises, with particular reference to the constitutions of the English-speaking world, some of the most common grounds for disqualifying persons from holding elective office and the various purposes that these might be thought to serve. A major theme is the question whether some grounds of disqualification, notwithstanding their long history, can be justified.

This book examines the extent to which Brexit has impacted upon the operation of the British Constitution, prompting in turn consideration of how some of the factors which contributed to the outcome of the 2016 referendum, as well as the event of Brexit itself, might inform debates surrounding constitutional reform moving forward. The work seeks to make sense of the constitutional implications of Brexit and to revisit some of the key debates that have taken place in respect of particular constitutional reform proposals in order to assess the extent to which recent Brexit-related developments inform the perspectives which are taken upon their merits and prospects. The book is divided into two parts. The first provides some context for the substantive treatment of the potential impact of Brexit on constitutional reform debates which forms the focus of Part II. Part II centres on various specific constitutional reform themes or issues, which are explored further within the context of Brexit. For each such issue, the main parameters of the debates which have taken place are sketched out before moving on to consider how it has informed, or may come to be informed, by the phenomenon of Brexit. By so doing, it looks to some future directions for constitutional reform which take account of the factors driving the discourses which gave rise to the referendum outcome and subsequent developments, as well as offering meaningful responses to these. The book will be of interest to academics, researchers and policy-makers working in the areas of constitutional law, constitutional politics, philosophy and history.

Cover title. ; Vol. 1. Submitted December 15, 1971, to the 1972 Legislature -- v. 2. Submitted December 15, 1973, to the 1974 Legislature -- v. 3. Submitted February 1, 1975, to the 1975 Legislature -- v. 4. Submitted to the 1976 Legislature. ; Mode of access: Internet.