Suchergebnisse

Using the proposed constitutional amendment to ban the desecration of the US flag as a case study, the tension between legal positivism & popular sovereignty is explored. The collective will of the governed constitutes the highest law in a constitutional democracy. In contrast to this democratic positivism, the constitution itself predates the will of the people since it is based on a preexisting moral idea. The controversy over flag desecration forces the question as to whether such a preexisting idea requires protection in the face of unpopular political expression. Constitutional democrats, it is argued, must therefore be legal antipositivists. More than an exercise in free will, however, constitutional amendment making is also an ethical judgment & moral commitment. Popular sovereignty, therefore, is both an expression of the people's will to make law in the way they see fit, & a search for the opposite -- a higher ethical & moral position. J. Cowie

Reflections are offered on Joseph M. Dawson's (2008 [1958]) analysis of the provisions for church-state separation implied in the First Amendment to the US Constitution. Points that Dawson failed to address here (which are explicated in his larger body of work) are identified, including (1) the role of Baptists in articulating the concept of church-state separation, (2) the importance of the Free Exercise Clause, (3) religion & public schools, (4) the idea that church-state separation does not mean the segregation of politics from religion. K. Hyatt Stewart

Although Kosovo is in the initial period of its European integration process, this article will analyse the extent to which the 2008 Kosovo Constitution is compatible with EU law. Integration in the European Union is one of the key objectives of Kosovo's constitutional preamble and the paper will discuss the prospective constitutional amendments that will occur in Kosovo in anticipation of accession to the European Union. The author's position is that a great part of constitutional non-compliance with EU law can be solved through constitutional interpretation (eg the partial transfer of sovereignty), while other issues will require parliamentary intervention through constitutional amendments, a process which does not always run without difficulty in Kosovo's democracy. In this paper, it is argued that the Kosovo Constitution will require a small package of constitutional amendments during the pre-accession process. Constitutional amendments will be required to ensure the precedence of EU law, but also to ensure that the right to vote and to stand as a candidate in municipal elections by citizens of the EU is guaranteed. Further, the article analyses the kind of impact the EU integration process will have on other specific constitutional issues in Kosovo, such as freedom of movement and the surrender of nationals to other Member States, and what constitutional choices there are to avoid any contradiction between the Constitution and EU law. The study takes into account constitutional adaptations in several Central and Southeast European countries on their path towards EU integration, which can serve as guidelines for the decision-making authorities in Kosovo to identify constitutional gaps and flaws in the course of the EU pre-accession process.

Part I: Constitutional design, amendment, and interpretation --Public participation, representative elites and technocrats in constitution-making processes : Nigeria, Uganda, South Africa and Kenya /Abrak Saati --Constitutional amendment and term limit evasion in Africa /Tom Ginsburg, Adem K. Abebe, and Rosalind Dixon --Constitutional review in Africa /Markus Böckenförde --Political party constitutionalisation in Africa : trends and prospects for deepening constitutionalism /Charles Fombad --Part II: Constitutional structure : deocratization and taming the executive --Democratic constitutional transitions in sub-Saharan Africa /Duncan M. Okubasu --Federalism, devolution and territorially based cleavages in Africa /Assefa Fiseha --Regulating the exercise of public power through law : a first glance at comparative administrative law/justice in Africa /Hugh Corder --Constitutional responses to corruption in Africa /Selemani Kinyunyu --Part III: Constitutional rights and freedoms --Constitutions, freedom of expression, internet shutdowns, social media and defamation laws in Africa /Mugambi Laibuta --Constitutional protection of socio-economic rights in Africa /Magnus Killander --Constitutional regulation of religion in Africa /Johan D. van der Vyver --Traditional kingdoms and modern constitutions : parochialism, patriarchy, and despotism vs. indigenous safeguards against absolutism /Jan Erk --Part IV: Constitutions and suprnational law --Africanization of constitutional law /Micha Wiebusch.

This study tests three hypotheses on factors driving the success and failure of amendments in the European Parliament's ENVI committee. The hypotheses, which are derived from different theories of legislative organization, are tested with an original dataset containing 550 amendments from 55 ENVI members. Contrary to existing empirical evidence on the structure of political conflict in plenary, the results suggest that a committee member's general ideological orientation on the left-right dimension is not decisive for his prospects to change the committee output. Instead, it seems like ENVI members with ties to green interest groups play a greater role in the formulation of environmental policies than committee members without comparable affiliations. Finally, the empirical evidence indicates that rapporteurs are only rarely challenged successfully by competing amendments. However, they are often willing to accept compromises.

Parliamentary debates on the 2001 Turkish civil code amendments have been analysed within the framework of the Islamism-secularism dichotomy. This article re-examines the debates and shows that the discussions on the amendments go beyond this dichotomy. Conservative opposition to the amendments reflected a desire to prevent state and court intervention in the customary practices and to preserve traditional family relationships rather than an Islamist attempt to expand the realm of religion. Women's rights were not simply another instrument for the Islamist-secularist competition as previously argued; the debates were ultimately about whether those rights should be defined according to traditional customs or the norms accepted by international agreements. Adapted from the source document.

The Constitution: Major Cases and Conflicts provides students with a road map through the evolution of the Supreme Court and its decisions involving criminal justice, civil liberties, social justice and federalism, and the balance of powers between the three branches of government placed in a historical context with thoughtful questions for discussion.