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During the past year, the state appellate courts have reviewed state legislation with a degree of restraint more marked than in the preceding year. The present attitude of the courts toward the work of legislatures may be in part the result of a change in court personnel. It is also both possible and probable that judges have been impressed by the more tolerant or liberal attitude of the United States Supreme Court. Finally, a few of the judges may have become aware of the fact that the times demand the relinquishment of an assumed judicial "supremacy" and the examination of legislative and administrative action under specific constitutional provisions in the light of social and economic realities. At all events, judicial review in the grand manner has given way to a more vigorous application of technical constitutional requirements. Courts are tending to emphasize procedure rather than substance; review appears to be at once more tolerant and more precise; decisions turn on narrower grounds, premises are less sweeping. When applied to state constitutions, this tendency means something quite different from what it means when applied to the national constitution.This tendency may perhaps be regarded as charged with possible evil results for the courts. Although state constitutions are, in most cases, so detailed and diverse that no actual diminution of the courts' discretionary powers need result, and although to a successful litigant it makes little difference whether a statute is invalidated for want of due process or for want of a proper title or enacting clause, it is difficult to conceive of many things that will bring the courts more quickly into popular disrepute than an exaggeration of constitutional technicalities.

State courts determine, in the absence of constitutional provision to the contrary, whether amendments to state constitutions have been proposed and adopted in the manner provided for these constitutions. Not every minor deviation from the course of action marked out in the constitution for its amendment is deemed sufficient to justify the court in declaring that the amendment has been "unconstitutionally adopted," but whether these deviations are serious enough to warrant such a declaration is a question to be determined by the courts themselves. Statutes supplementing constitutional provisions on the subject of amendment are valid if not in conflict with the constitutional provisions themselves, and substantial compliance with these rules is also required by the courts. Sometimes the provisions regulating the subject of publication of proposed amendments are constitutional; at other times they are statutory. In either case, publication in the manner provided for, and for the period of time provided for, is necessary to the validity of the amendment. Publication for two weeks, when the period should have been four weeks, was deemed sufficient by the Nebraska court to invalidate the amendment involved.

Intro -- Contents -- Introduction -- Part I: Fundamental Law -- Fundamental Law -- 1 Introduction -- 2 State Formation -- 3 The Political and the Legal -- 4 The Origins of Fundamental Law -- 5 Sovereignty -- 6 The Modern Idea of Fundamental Law -- 7 The Ideological Dimension of Modern Fundamental Law -- 8 Conclusion -- References -- Expanding Legality and Losing Fundamental Law: On Martin Loughlin´s Dualist Conception of Public Law -- 1 Introduction -- 2 The Structural Dualism of Martin Loughlin´s Approach to Public Law -- 3 Explaining the Dualist Structure of Public Law -- 3.1 The Influence of Carl Schmitt -- 3.2 The Troubling Legacy of Spinoza -- 3.3 An Ambiguous Genealogy? Political Theology and the Distinction Between Potentia Absoluta and Potentia Ordinata -- 4 The Dialectics of Public Law -- 5 Expanding Constitutional Legality and Losing Public Law -- 6 Conclusion -- References -- Part II: A Political-Theological Dimension -- Decision and Legal Interpretation -- 1 The Puzzle of Disagreement Within the Law: The Jurisprudential and Political Challenges -- 2 Disagreement and the Problem of Decision -- 3 The Difficulty of Theorizing the Decision -- 4 Decision as a Condition of Interpretation -- References -- An Alternative Political Theology: The Negative and Anticipatory Significance of the Constitutive Concepts of Constitutional L... -- 1 Introduction -- 2 Negative Theology and the Doctrine of the Trinity -- 3 The Irregularity of Schmitt´s Political Theology -- 4 The System of National Sovereignty -- 5 Final Remarks -- References -- Part III: Political Constitutional Law -- Informal Constitutional Change and Political Law -- 1 Introduction -- 2 An Anomaly in Models of Written Constitutionalism -- 3 Unwritten Constitutional Law: A ``Realistic´´ Observation -- 4 The Concepts of ``Political Law´´ -- 5 The Functions of a ``Political´´ Approach.

Validity of Constitutional Amendments. The courts continue to scan with rather meticulous care the procedure for the adoption of constitutional amendments. Where the sole purpose of a proposed constitutional amendment under the initiative provisions of the constitution was to provide for the levy of a "syncrotax," or a tax on the basis of gross receipts in lieu of all other state taxes, a petition with a short title reading "initiative measure providing for adoption of gross receipts act" was held fatally defective in view of the requirement that every initiative petition have a short title showing the nature of the petition and the subject to which it relates. But according to the supreme court of Florida, a proposal to amend the constitution need not have a title, need not be read on different days or at different times, and need not be concurred in by the governor. And the dissenting justices protested that the majority failed to uphold the requirement that a proposed amendment shall be entered upon the respective journals of the two houses with the yeas and nays, showing a three-fifths vote in favor of the amendment. There must be, however, a violation of express constitutional requirements for the courts to interfere with the procedure in the adoption of amendments.

Introduction -- Part I -- Fundamental Law -- Fundamental Law -- Expanding Legality and Losing Fundamental Law: On Martin Loughlin's Dualist Conception of Public Law -- Part II -- A Political-Theological Dimension -- Decision and Legal Interpretation -- An Alternative Political Theology: The Negative and Anticipatory Significance of the Constitutive Concepts of Constitutional Law -- Part III -- Political Constitutional Law -- Informal Constitutional Change and Political Law -- "Liquid Constitutions" and Their Informal Changes -- Part IV The Problem of European "Constitutional Law" -- A Functional Alternative to Political Right: Social Contract Without a People -- In Capital We Trust: The Eurozone: A Congeries of Material Norms Without a Constitution? -- The Different Faces of Politics: Economic Governance and European Democracy.