Separation of Powers As Ordinary Interpretation
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The Judicial Power and the Inferior Federal Courts: Exploring the Constitutional Vesting Thesis
GEORGIA LAW REVIEW VOLUME 46 FALL 2011 NUMBER 1 ARTICLES THE JUDICIAL POWER AND THE INFERIOR FEDERAL COURTS: EXPLORING THE CONSTITUTIONAL VESTING THESIS A. Benjamin Spencer* TABLE OF CONTENTS I. INTRODUCTION ............................... ........ 2 II. THE PLAN OF THE CONVENTION ......................... 6 A. THE DEBATES IN THE FEDERAL CONVENTION OF 1787.......7 B. THE DEBATES IN THE STATE CONVENTIONS ............. 14 C. THE FEDERALIST PAPERS...........................24 III. THE TRADITIONAL VIEW OF THE JUDICIAL POWER...............36 A. THE UNDERSTANDING OF CONGRESS ................... 37 B. THE VIEW OF THE COURT. ........................... 42 IV. A POSSIBLE ALTERNATIVE VIEW OF THE JUDICIAL POWER ..................................... 46 V. CONCLUSION ........................................ 66 * Visiting Professor, University of Virginia School of Law; Professor of Law, Washington & Lee University School of Law. I am thankful to the University of Virginia for its generous grant assistance that supported my work on this Article. Thanks also go to Michael Collins and Caprice Roberts for their helpful comments and suggestions. 1 2 GEORGIA LAWREVIEW [Vol. 46:1 The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.' I. INTRODUCTION Although the Constitution vests the "[J]udicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, 2 both Congress3 and the Court4 have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power.5 Is this view fully consonant with the I THE FEDERALIST No. 48, at 279 (James Madison) (Am. Bar Ass'n 2009). 2 U.S. CONST. art. -
Croatia's Constitution of 1991 with Amendments Through 2010
PDF generated: 26 Aug 2021, 16:24 constituteproject.org Croatia's Constitution of 1991 with Amendments through 2010 This complete constitution has been generated from excerpts of texts from the repository of the Comparative Constitutions Project, and distributed on constituteproject.org. constituteproject.org PDF generated: 26 Aug 2021, 16:24 Table of contents I. Historical Foundations . 3 II. Basic Provisions . 4 III. Protection of Human Rights and Fundamental Freedoms . 7 1. General Provisions . 7 2. Personal and Political Freedoms and Rights . 9 3. Economic, Social and Cultural Rights . 14 IV. Organization of Government . 18 1. The Croatian Parliament . 18 2. The President of the Republic of Croatia . 22 3. The Government of the Republic of Croatia . 26 4. Judicial Power . 28 5. The Office of the Public Prosecutions . 30 V. The Constitutional Court of the Republic of Croatia . 31 VI. Local and Regional Self-Government . 33 VII. International Relations . 35 1. International agreements . 35 2. Association and Succession . 35 VIII. European Union . 36 1. Legal Grounds for Membership and Transfer of Constitutional Powers . 36 2. Participation in European Union Institutions . 36 3. European Union Law . 37 4. Rights of European Union Citizens . 37 IX. Amending the Constitution . 37 IX. Concluding Provisions . 38 Croatia 1991 (rev. 2010) Page 2 constituteproject.org PDF generated: 26 Aug 2021, 16:24 I. Historical Foundations • Reference to country's history The millenary identity of the Croatia nation and the continuity of its statehood, -
Meritocracy in Autocracies: Origins and Consequences by Weijia Li a Dissertation Submitted in Partial Satisfaction of the Requir
Meritocracy in Autocracies: Origins and Consequences by Weijia Li A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Economics in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Gérard Roland, Chair Professor Ernesto Dal Bó Associate Professor Fred Finan Associate Professor Yuriy Gorodnichenko Spring 2018 Meritocracy in Autocracies: Origins and Consequences Copyright 2018 by Weijia Li 1 Abstract Meritocracy in Autocracies: Origins and Consequences by Weijia Li Doctor of Philosophy in Economics University of California, Berkeley Professor Gérard Roland, Chair This dissertation explores how to solve incentive problems in autocracies through institu- tional arrangements centered around political meritocracy. The question is fundamental, as merit-based rewards and promotion of politicians are the cornerstones of key authoritarian regimes such as China. Yet the grave dilemmas in bureaucratic governance are also well recognized. The three essays of the dissertation elaborate on the various solutions to these dilemmas, as well as problems associated with these solutions. Methodologically, the disser- tation utilizes a combination of economic modeling, original data collection, and empirical analysis. The first chapter investigates the puzzle why entrepreneurs invest actively in many autoc- racies where unconstrained politicians may heavily expropriate the entrepreneurs. With a game-theoretical model, I investigate how to constrain politicians through rotation of local politicians and meritocratic evaluation of politicians based on economic growth. The key finding is that, although rotation or merit-based evaluation alone actually makes the holdup problem even worse, it is exactly their combination that can form a credible constraint on politicians to solve the hold-up problem and thus encourages private investment. -
CONCEPT of STATEHOOD in UNITED NATIONS PRACTICE * ROSALYN COHEN T
1961] THE CONCEPT OF STATEHOOD IN UNITED NATIONS PRACTICE * ROSALYN COHEN t The topic of "statehood under international law" has long been a favorite with jurists. The problem of what constitutes a "state" has been extensively examined and discussed, but all too often in absolutist terms confined to drawing up lists of criteria which must be met before an entity may be deemed a "state." The very rigidity of this approach implies that the term "state" has a fixed meaning which provides an unambiguous yardstick for measuring without serious fear of error, the existence of international personality. The framework of examination being thus constricted, traditional inquiry has endeavored to meet some of its inadequacies by ancillary discussions on the possi- bility of a "dependent state" in international law, of the desirability of universality in certain organizations set up by the international com- munity, and of the rights of peoples to national self-determination. It would appear, however, that these questions, far from being ancillary, are integral to any discussion of "statehood." Even the language of the law-or perhaps especially the language of the law-contains ambiguities which are inherent in any language system, and the diffi- culties presented by this fact can only be resolved by an analysis which takes full cognizance of the contextual background. Thus, when ex- amining what is meant by the word "state," an appraisal of the com- munity interests which will be affected by the decision to interpret it in one way rather than in another is necessary. Discussions, for example, of whether a "dependent state" can exist under international law become meaningless unless there is first an examination of whether the community of nations would find it appropriate, in the light of its long range objectives, to afford the rights which follow from "state- hood" to entities fettered by restrictions which impair their independ- ence. -
Open-And-Shut: Senate Impeachment Deliberations Must Be Public Marjorie Cohn
Hastings Law Journal Volume 51 | Issue 2 Article 3 1-2000 Open-and-Shut: Senate Impeachment Deliberations Must Be Public Marjorie Cohn Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Marjorie Cohn, Open-and-Shut: Senate Impeachment Deliberations Must Be Public, 51 Hastings L.J. 365 (2000). Available at: https://repository.uchastings.edu/hastings_law_journal/vol51/iss2/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Open-and-Shut: Senate Impeachment Deliberations Must Be Public by MARJORIE COHN* Table of Contents I. Impeachment Rules and Precedents ................................................ 368 A. Current Impeachment Rules ............................................... 368 B. A Tradition of Senate Secrecy ............................................ 370 (1) Congressional Rule-Making Authority ........................ 370 (2) The "Closed-Door Policy"............................................. 370 (3) The Twentieth Century: The Door Opens Wider ...... 374 (4) When the Doors Are Closed ......................................... 376 C. Historical Impeachment Rules ............................................ 377 D. Why Did the Presumption of Openness Change in .. 1868 with the Andrew Johnson Impeachment? -
The Economic and Political Situation in Croatia
DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT D: BUDGETARY AFFAIRS The Economic and Political Situation in Croatia NOTE 08/06/2010 PE 411.280 EN This document was requested by the European Parliament's Committee on Budgetary Control. AUTHOR Ms Yana Mechkova RESPONSIBLE ADMINISTRATOR Mr Christian EHLERS Policy Department D: Budgetary Affairs European Parliament B-1047 Brussels E-mail: [email protected] LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR To contact the Policy Department or to subscribe to its monthly newsletter please write to: poldep- [email protected] Manuscript completed in June 2010. Brussels, © European Parliament, 2010. This document is available on the Internet at: http://www.europarl.europa.eu/studies DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. The Economic and Political Situation in Croatia ___________________________________________________________________________________ TABLE OF CONTENTS 1. INTRODUCTION............................................................................................... 2 2. THE POLITICAL SITUATION............................................................................. 2 2.1. THE POLITICAL STRUCTURE................................................................................... -
Nigeria's Constitution of 1999
PDF generated: 26 Aug 2021, 16:42 constituteproject.org Nigeria's Constitution of 1999 This complete constitution has been generated from excerpts of texts from the repository of the Comparative Constitutions Project, and distributed on constituteproject.org. constituteproject.org PDF generated: 26 Aug 2021, 16:42 Table of contents Preamble . 5 Chapter I: General Provisions . 5 Part I: Federal Republic of Nigeria . 5 Part II: Powers of the Federal Republic of Nigeria . 6 Chapter II: Fundamental Objectives and Directive Principles of State Policy . 13 Chapter III: Citizenship . 17 Chapter IV: Fundamental Rights . 20 Chapter V: The Legislature . 28 Part I: National Assembly . 28 A. Composition and Staff of National Assembly . 28 B. Procedure for Summoning and Dissolution of National Assembly . 29 C. Qualifications for Membership of National Assembly and Right of Attendance . 32 D. Elections to National Assembly . 35 E. Powers and Control over Public Funds . 36 Part II: House of Assembly of a State . 40 A. Composition and Staff of House of Assembly . 40 B. Procedure for Summoning and Dissolution of House of Assembly . 41 C. Qualification for Membership of House of Assembly and Right of Attendance . 43 D. Elections to a House of Assembly . 45 E. Powers and Control over Public Funds . 47 Chapter VI: The Executive . 50 Part I: Federal Executive . 50 A. The President of the Federation . 50 B. Establishment of Certain Federal Executive Bodies . 58 C. Public Revenue . 61 D. The Public Service of the Federation . 63 Part II: State Executive . 65 A. Governor of a State . 65 B. Establishment of Certain State Executive Bodies . -
Individual Rights Under State Constitutions in 2018: What Rights Are Deeply Rooted in a Modern-Day Consensus of the States? Steven G
Notre Dame Law Review Volume 94 | Issue 1 Article 2 11-2018 Individual Rights Under State Constitutions in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States? Steven G. Calabresi Northwestern Pritzker School of Law James Lindgren Northwestern Pritzker School of Law Hannah M. Begley Stanford Law School Kathryn L. Dore Northwestern Pritzker School of Law Sarah E. Agudo Northwestern Pritzker School of Law Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons, and the State and Local Government Law Commons Recommended Citation 94 Notre Dame L. Rev. 49 (2018). This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\94-1\NDL102.txt unknown Seq: 1 21-NOV-18 10:57 INDIVIDUAL RIGHTS UNDER STATE CONSTITUTIONS IN 2018: WHAT RIGHTS ARE DEEPLY ROOTED IN A MODERN-DAY CONSENSUS OF THE STATES? Steven Gow Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore & Sarah E. Agudo* INTRODUCTION .................................................. 51 R I. METHODOLOGY ........................................... 53 R II. THE DATA ON THE STATE CONSTITUTIONS ................. 54 R A. Rights Bearing on Religion ............................. 54 R 1. Establishment Clauses ............................ 54 R 2. Free Exercise Clauses ............................ 62 R © 2018 Steven Gow Calabresi, James Lindgren, Hannah M. Begley, Kathryn L. Dore & Sarah E. Agudo. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. -
Separation of Powers in Post-Communist Government: a Constitutional Case Study of the Russian Federation Amy J
American University International Law Review Volume 10 | Issue 4 Article 6 1995 Separation of Powers in Post-Communist Government: A Constitutional Case Study of the Russian Federation Amy J. Weisman Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Weisman, Amy J. "Separation of Powers in Post-Communist Government: A Constitutional Case Study of the Russian Federation." American University International Law Review 10, no. 4 (1995): 1365-1398. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. SEPARATION OF POWERS IN POST- COMMUNIST GOVERNMENT: A CONSTITUTIONAL CASE STUDY OF THE RUSSIAN FEDERATION Amy J. Weisman* INTRODUCTION This comment explores the myriad of issues related to constructing and maintaining a stable, democratic, and constitutionally based govern- ment in the newly independent Russian Federation. Russia recently adopted a constitution that expresses a dedication to the separation of powers doctrine.' Although this constitution represents a significant step forward in the transition from command economy and one-party rule to market economy and democratic rule, serious violations of the accepted separation of powers doctrine exist. A thorough evaluation of these violations, and indeed, the entire governmental structure of the Russian Federation is necessary to assess its chances for a successful and peace- ful transition and to suggest alternative means for achieving this goal. -
Constitutional Administration
Constitutional Administration Ilan Wurman* Administrative law rests on two fictions. The first, the non-delegation doctrine, imagines that Congress does not delegate legislative power to agencies. The second, which flows from the first, is that the administrative state thus exercises only executive power, even if that power sometimes “looks” legislative or judicial. These fictions are required by a formalist reading of the Constitution, whose vesting clauses permit only Congress to make law and the President only to execute the law. For the sake of constitutional appearances, this formalist reading requires us to accept as a matter of practice not only unconstitutional delegation, but also an unconstitutional violation of separation of powers, while pretending that neither violation is occurring as a matter of doctrine. This Article argues that we ought to accept the delegation of legislative power because doing so can help remedy the undermining of the separation of powers. It seeks to make one functionalist move in order to deploy formalist tools to restore some semblance of the original constitutional scheme of separate powers. Accepting delegation allows us to delineate the legislative, executive, and judicial components of administration and to empower each constitutional branch of government over the component corresponding to its own constitutional function. With this insight, for example, a properly conceived legislative veto is constitutional. This Article seeks to take both formalism and functionalism more seriously. Modern formalism has merely served to mask the administrative state’s unconstitutional foundations by pretending they do not exist. Functionalism, for its part, has failed to offer limiting principles and has aimed largely at justifying modern administrative practices without much concern for constitutionalism at all. -
The Impeachment and Trial of a Former President
Legal Sidebari The Impeachment and Trial of a Former President January 15, 2021 For the second time in just over a year, the House of Representatives has voted to impeach President Donald J. Trump. The House previously voted to impeach President Trump on December 18, 2019, and the Senate voted to acquit the President on February 5, 2020. Because the timing of this second impeachment vote is so close to the end of the Trump Administration, it is possible that any resulting Senate trial may not occur until after President Trump leaves office on January 20, 2021. This possibility has prompted the question of whether the Senate can try a former President for conduct that occurred while he was in office. The Constitution’s Impeachment Provisions The Constitution grants Congress authority to impeach and remove the President, Vice President, and other federal “civil Officers” for treason, bribery, or “other high Crimes and Misdemeanors.” Impeachment is one of the various checks and balances created by the Constitution, and it serves as a powerful tool for holding government officers accountable. The impeachment process entails two distinct proceedings carried out by the separate houses of Congress. First, a simple majority of the House impeaches—or formally approves allegations of wrongdoing amounting to an impeachable offense. The second proceeding is an impeachment trial in the Senate. If the Senate votes to convict with a two-thirds majority, the official is removed from office. The Senate also can disqualify an official upon conviction from holding a federal office in the future; according to Senate practice, this vote follows the vote for conviction. -
Impeachment As Judicial Selection?
William & Mary Bill of Rights Journal Volume 18 (2009-2010) Issue 3 Article 3 March 2010 Impeachment as Judicial Selection? Tuan Samahon Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Courts Commons, and the Judges Commons Repository Citation Tuan Samahon, Impeachment as Judicial Selection?, 18 Wm. & Mary Bill Rts. J. 595 (2010), https://scholarship.law.wm.edu/wmborj/vol18/iss3/3 Copyright c 2010 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj IMPEACHMENT AS JUDICIAL SELECTION? Tuan Samahon* Ideological judicial selection encompasses more than the affirmative nominating, confirming, and appointing of judges who pre-commit to particular legal interpretations and constructions of constitutional text. It may also include deselection by way of im- peachment and removal (or at least its threat) of judges subscribing to interpretations and constructions of the Constitution that one disapproves. This negative tactic may be particularly effective when deployed against judges on closely divided collegial courts, such as the U.S. Supreme Court and the U.S. courts of appeals, where per- sonnel determine voting majorities and, in turn, majorities determine case outcomes. The Pickering-Chase, Fortas-Douglas, and Christian Coalition impeachments and threats of impeachment illustrate that the use or threat of this tactic is more common than might be supposed. Indeed, recent calls for the removal of Circuit Judge Jay Bybee demonstrate the continuing allure of impeachment as judicial selection. This Article examines the phenomenon of impeachment as judicial selection through Professors Tushnet’s and Balkin’s framework of “constitutional hardball.” In the case of impeachment as judicial selection, Congress plays constitutional hardball by claiming that it is an appropriate tool for political control and a fraternal twin to the modern appointments process.