Mark Tushnet has written a great critique of constitutional judicial review. With his sure grasp of the scholarship, his commit- ment to the issues and the real people behind them, and his methodical, flawless reasoning, he has effectively blasted the theoretical foundations of judicial constitutional law to smithereens. As such, he has made a valuable contribution to legal scholarship that will remain so for a long time to come.
Is sovereignty relevant to modern government? This is a question of great theoretical interest, but it is now also of great practical interest. The current debates on the future of the European Union after the British referendum have touched on issues of sovereignty. Many people in the United Kingdom, for example, are worried about what they perceive to be an incursion to sovereignty by European institutions and believe that the withdrawal from the EU will restore sovereignty. This is what Prime Minister May said at a speech to the Conservative Party Conference in September 2016. She promised that leaving the EU will make the United Kingdom once again a fully 'sovereign' state. Does it make sense to speak of sovereignty in this way? Or is the ideal of absolute self-government a mirage? Can the idea of sovereignty carry the political burden placed upon it?
Although a relatively small number of cases turned upon constitutional questions during the survey period, some important decisions were handed down in this area. In five separate decisions legislation was declared unconstitutional. The impact of the constitutional decisions varies from the right to millions of dollars in school funds in Shelby County and the salary of the clerk of General Sessions Court of Clay County to approval of permanent tenure for all franchised automobile dealers in the state. The scope of governmental power over the administration of estates, condemnation of private property and the pursuit of private businesses brought forth important and far-reaching judicial pronouncements. Two cases are witness to the diminishing concern for protection of contractual rights as such from legislative infringement. Although most decisions dealt with constitutional limitations on legislative power over business, private property and governmental functions, in one decision the fundamental procedural rights of one accused of crime were upheld in order to free him.
When elections bring about changes in the political party of the president, the shifts frequently involve a change in the philosophies that inform the approach to governing. In teaching constitutional law, administrative law, and health law, this author cautions students to consider the political content of agency actions underlying the judicial opinions studied. Examining the political and discretionary judgment government officials exercise may provide an explanation for the results or an analysis when the law does not seem to account for the agency action or court decision. This Article examines the opportunities available to an incoming administration to undo the work of its predecessor and the constraints the law imposes on the exercise of discretion. After surveying the increasing use of the Congressional Review Act to reverse the regulatory actions of a predecessor administration, Part I of the Article explores other administrative law tools available to halt or redirect regulatory actions with which an incoming administration disagrees. Part II examines some of the signature cases involving judicial review of agency action to illustrate the constraints courts may impose on changes in administrative policy. Parts III, IV, and V examine how courts have dealt with policy changes in federal health care programs and the potential impact of changes in the presidential approach to the appointment of administrative adjudicators. The Article closes with some reflections on how this author's experiences working in state and federal government have informed her view of government decision-making.
Se exponen en estas notas, fruto de la intervención en el Congreso anual de la Asociación de Constitucionalistas de España (celebrado en Santiago de Compostela en abril de 2019), algunas de las iniciativas de innovación docente desarrolladas desde el Departamento de Derecho Político de la UNED para las asignaturas de la disciplina de Derecho constitucional. Se aborda la dinámica de trabajo del equipo docente de la asignatura, los materiales elaborados y la forma de interactuar con los alumnos en las plataformas virtuales. De forma particular, se analiza la necesidad de progresar en el uso y aprovechamiento de los instrumentos que nos ofrecen las nuevas tecnologías en nuestra labor docente. ; These notes are the result of the intervention in the annual Congress of the Association of Spanish Constitutionalists (Santiago de Compostela, April 2019) and show some of the teaching innovation initiatives developed by the Department of Political Law of the UNED, within the Constitutional Law area. Teaching strategies, resources used and the way to interact with students through virtual platforms are analysed. More specifically, the text focuses on the need of further progress in the use of technological tools so as to improve our teaching practice.
International audience ; The dual constitutionality of human rights, when they are protected through both domestic constitutional and international law, is a well-established dimension of the contemporary practice of human rights. Instead of exploring, as others have done before, how domestic constitutional law has been internationalized by international human rights law, on the one hand, or how international law has been constitutionalized through human rights law, on the other, this chapter addresses domestic and international human rights law together in an integrated fashion. This is what it refers to as transnational human rights law. The transnationality of human rights law corresponds to the complementary processes through which domestic and international human rights laws are made and specified, and hence mutually validated and legitimated. After some clarifications of the concept of transnationality in law in general and in human rights law in particular, the chapter justifies the transnationality of human rights law on democratic and epistemic grounds, before drawing implications for its determination methods, that is, human rights comparison and the transnational human rights consensus it thereby identifies.
Development of National Law in the Republic of Indonesia, in the post-reform era, experienced a pretty great struggle, due to the lack of strength and lack of comprehensiveness of the government's efforts to fight for smooth reform, characterized by various improper behaviors, which were not based on values contained in the precepts of the Pancasila. Based on this concern, an effort is needed to better understand the values that exist in the precepts of the Pancasila. These values actually exist in the life of Indonesian people which are divided into various ethnic cultures. The aim is to find out the various events that occur due to a lack of understanding of multiculturalism which causes justification for wrong behavior. Therefore, this multiculturalism understanding is positioned as a grand strategy in the realization of Pancasila, so that cultural understanding and interaction will support national law development. The research method uses a qualitative, descriptive analysis approach, which is carried out methodologically, sociologically, and historically. Data collection uses primary study in the form of literature and secondary studies in the form of various philosophers of state administration. Approaches from various aspects, such as philosophical aspects (philosophy approach), legislation (statute approach). Conclusions and implications of problems that occur in multicultural understanding and constitutional awareness.
Conveniently divided into fifteen chapters with numerous subsections, this book presents a clear, comprehensive, and integrated introduction to the U.S. Constitution and American constitutional law. Kaplin develops the basic concepts, conceptual distinctions, and first principles that provide the foundation for constitutional law; the process by which the Constitution is interpreted; and the analytical methodologies by which individual clauses are applied to new circumstances. Leading U.S. Supreme Court cases, especially the classical cases, are also presented and analyzed throughout. The author periodically uses history, political science, and jurisprudence to enhance the reader's understanding of the subject, including a section on constitutionalism from the early Greek philosophers to the present; historical timelines of Supreme Court case developments; and expositions of the American concepts of federalism and separation of powers. Several sections also discuss the inter-relationship between the federal Constitution and state constitutions. This book contains substantial study guidance for students in law school courses or law-related graduate school courses, and readers who are engaged in independent learning apart from any formal course. There are learning exercises at many points in the book, for instance, followed by answer guidelines. There is also a section on study suggestions at the end of each substantive chapter; a methodology for reading and analyzing cases; guidance on study techniques and exam taking; and bibliographies to guide further reading. ; https://scholarship.law.edu/fac_books/1052/thumbnail.jpg
In the article the author analyses influence of Lithuanian Constitutional Law on Latvian Constitutional Law. The article is dedicated to the analyses of the some similar aspects of the Constitution (Satversme) of the Republic of Latvia and the Constitution of the Republic of Lithuania from 1922. Besides the main objective the article also considers the information of the Lithuanian influence on the Latvian constitutional praxis in general. In the second section of the article the author describes in general the Lithuanian influence. This influence exists in constitutional legislation as well as in praxis of Latvian Constitutional Court. As the very important aspect in this influence the author mentioned the close cooperation of Latvian and Lithuanian Constitutional Courts nowadays. The third section of the article related to the analyses of the Latvian Constitution (Satversme) from the perspective of the Lithuanian 1922 Constitution. The author in this section discusses content of some similar norms of the both Constitution. Three unclear norms of the Latvian Constitution and praxis of implementation of this norms are analysed in this section of the article. Author also shows similar norms of the Lithuanian 1922 Constitution in which disputed questions are written more clearly.
The outgoing tide of EU law will be Britain's most significant constitutional change in recent times. In an era of uncertainties, the UK Supreme Court proved to be a guardian of the constitutional role of Parliament. The case of Miller, decided in the UK Supreme Court in 2017, proved that point. The highest court in the UK has therefore gained an important place in the global community of Constitutional Courts. This global community finds its legitimacy in the recognition of common values as well as the recognition of national variations. This article analyses to which extent common values, and in particular those found in German law, have influenced decisions in the House of Lords and UK Supreme Court. To do so, the author analyses decisions by the House of Lords and the Supreme Court and extrajudicial speeches by the Justices of the Supreme Court for references to German constitutional law. It identifies and maps the themes that have attracted the attention of the justices of the Supreme Court. More recently, the UK Supreme Court has referred to judgments and extrajudicial writing by German Constitutional Court judges. This was in the context of constitutional questions relating to the tension between membership within the EU and national identity, a theme which has occupied German judges for some time. As well as that, the interpretation of the European Convention on Human Rights has sparked an interest in German jurisprudence, in particular in the principle of proportionality.
Accepting the Clausewitz thesis that "war is only an extension of policy," we are free to say that the politicians have created chaos in these latter days in a rather wholesale way. But that is another story. The World Revolution is not my topic, but the comparatively limited revolution which we have been witnessing in our own country the last few years in consequence of the New Deal and more recently of the war. How has this revolution affected conceptions of governmental power in the United States; how is it to be evaluated in terms of American Constitutional Law? For Constitutional Law has always been the most distinctive feature of the American system of government, the result of a unique infusion of politics with jurisprudence, of current opinion with established principles. Today this remarkable product of American political genius appears to be undergoing a fundamental revision—even to be in process of dissolution.
