Suchergebnisse

The Supreme Court of Tennessee has been faced with few major Constitutional Law problems during the period under consideration. Statistically, the action of the Court in invalidating one law out of almost a score that were attacked before it on the basis of constitutional defect suggests an attitude of judicial restraint toward the product of a coordinate branch of government. The relatively small number of constitutional questions raised-- and many of them were obviously make-weight rather than points of principal reliance-- suggests a general awareness of the Court's stability and the unlikelihood of its departing from established precedent. Similarly, regard for the precedent established in Plessy v. Ferguson, with its "separate but equal" doctrine, was a major factor in the decision of two federal district courts in Tennessee involving alleged deprivation of constitutional rights in the furnishing of educational and recreational facilities to Negroes. It was not a year for the expansion or contraction of doctrines of constitutionality previously established, although in one instance at least it appears that some "new law" was made.

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constitutional concerns permeate core administrative law doctrines and requirements, yet Congress enjoys broad power to alter ordinary administrative law notwithstanding its constitutional aspect. Unfortunately, the constitutional common law character of much of ordinary administrative law is rarely acknowledged by courts. A striking example of this lack of acknowledgment is the 2009 decision in FCC v. Fox Television Stations, Inc., in which the Supreme Court insisted that whether an agency action is "arbitrary and capricious" and whether it is unconstitutional are separate questions. Recognizing the interrelationship between constitutional law and ordinary administrative law is important both for the ongoing debate over the legitimacy of constitutional common law and for proper appreciation of the role administrative agencies can play in our constitutional order. Underlying many attacks on constitutional common law is a view of constitutional law as having a narrow and determinate scope. Yet the interwoven relationship between ordinary law and constitutional law in the administrative law context suggests this view of constitutional law is false. In addition, seeking to enforce constitutional norms through ordinary administrative law better accords with constitutional principles than efforts to segregate out the two and is likely to prove less intrusive to the policymaking prerogatives of the political branches. The better critique is not the extent to which constitutional common law surfaces in administrative contexts, but rather the lack of transparency that accompanies it.

"Constitutional Law" published on by Oxford University Press.

The impact of EU membership on the UK constitution has been profound. In the Miller (Article 50) case, the Supreme Court described the effect of the European Communities Act 1972 (ECA) – the means by which EU membership was given effect within the UK – as being unprecedented in constitutional terms. Not only did it provide for a new source of law, and a new constitutional process for making law in the UK, it also fundamentally changed the UK's system of government and the way in which we think about the location and exercise of public power.

Cover; Contents; Introduction; 1. Federal Judicial Power; 2. Federal Legislative Power; 3. Federal Executive Power; 4. Limits on State Regulatory Authority; 5. Incorporation, State Action, and Takings; 6. Mixed Structural Problems; 7. The Due Process Clauses and Non-Textual Rights; 8. Equal Protection; 9. Free Expression; 10. Freedom of Association; 11. The Religion Clauses; 12. Mixed Individual Rights Problems; Table of Cases.

The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M.Hauriou and K.Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.

The authors survey the recent developments in Florida constitutional law, focusing on the powers and duties of the three branches of state government. Their discussion includes an analysis of the recent constitutional amendment modifying the jurisdiction of the supreme court.

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the countermajoritarian Constitution's provisions. Absent judicial review, the fundamental speed bumps to tyranny that the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the very political branches that the Constitution is designed to restrain will fully control the remedies to be issued. Thus, all the political branches need to do to avoid constitutional control is deny the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet neither constitutional scholars nor the Supreme Court have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope—indeed, the existence—of remedies to enforce constitutional dictates. This Article explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. It then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation, highlights the inadequacy of scholarly work in this area, and answers potential counterarguments. Finally, it applies this theory of constitutional remedies to the Supreme Court's implied remedies jurisprudence.

Chapter 1. Introduction: The City as a Multifaceted and Dynamic Constitutional Entity -- Part I: Cities within national power structures -- Chapter 2 Cities and the Dutch Constitution -- Chapter 3. Modes of Urban Autonomy: The Constitutional Characteristics of Self-Governance in Amsterdam, Paris, and Hamburg -- Chapter 4. Reanimating Brussels: The Beating Heart of the Belgian Federation -- Chapter 5. How much Local Autonomy is Good for a City? An Analysis of the Peruvian Constitutional Design for Cities and its Effects in the Case of the Lima Metropolitan Area -- Chapter 6 Comparative Constitutional Politics in Hong Kong and Macau under Chinese Sovereignty -- Chapter 7. A Tale of Three Cities: The City in German Constitutional Law -- Part II: Cities and citizens -- Chapter 8. The Constitution and the City -- Chapter 9. Urban Governance and the Right to a Healthy City -- Chapter 10. Topical Storm Approaching: Regulating Public Assemblies and Responding to Online Falsehoods in the City-state of Singapore -- Chapter 11. The City of London: Dominance, Democracy, and the Rule of Law? -- Part III: Cities and the international arena -- Chapter 12 Accelerating Cities, Constitutional Brakes -- Chapter 13. European Cities between Self-Government and Subordination: Their Role as Policy-Takers and Policy-Makers -- Part IV: Constitutional law in the age of the city -- Chapter 14. Urbanization, Megacities, Constitutional Silence -- Chapter 15. Redrawing the Boundaries of City Governance: Preliminary Lines of Inquiry into Metropolitan Cities, Socio-Economic Challenges and Constitutional Law.