Classifying Systems of Constitutional Review: a Context-Specific Analysis
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The Fundamentals of Constitutional Courts
Constitution Brief April 2017 Summary The Fundamentals of This Constitution Brief provides a basic guide to constitutional courts and the issues that they raise in constitution-building processes, and is Constitutional Courts intended for use by constitution-makers and other democratic actors and stakeholders in Myanmar. Andrew Harding About MyConstitution 1. What are constitutional courts? The MyConstitution project works towards a home-grown and well-informed constitutional A written constitution is generally intended to have specific and legally binding culture as an integral part of democratic transition effects on citizens’ rights and on political processes such as elections and legislative and sustainable peace in Myanmar. Based on procedure. This is not always true: in the People’s Republic of China, for example, demand, expert advisory services are provided it is clear that constitutional rights may not be enforced in courts of law and the to those involved in constitution-building efforts. constitution has only aspirational, not juridical, effects. This series of Constitution Briefs is produced as If a constitution is intended to be binding there must be some means of part of this effort. enforcing it by deciding when an act or decision is contrary to the constitution The MyConstitution project also provides and providing some remedy where this occurs. We call this process ‘constitutional opportunities for learning and dialogue on review’. Constitutions across the world have devised broadly two types of relevant constitutional issues based on the constitutional review, carried out either by a specialized constitutional court or history of Myanmar and comparative experience. by courts of general legal jurisdiction. -
ONE the SUPREME COURT and the MAKING of PUBLIC POLICY in CONTEMPORARY CHINA Eric C. Ip
ONE THE SUPREME COURT AND THE MAKING OF PUBLIC POLICY IN CONTEMPORARY CHINA Eric C. Ip Post-Mao China saw profound social, economic and legal changes. This paper analyzes an often neglected aspect of these transformations: the evolution of the Supreme People’s Court (SPC) into an increasingly influential political actor in national law and policy-making. The SPC has self-consciously redefined its mandate to manage state-sponsored legal reforms by performing an expansive range of new functions such as issuing abstract rules, tightening control over lower courts and crafting out a constitutional jurisprudence of its own at the expense of other powerful state actors. It is more assertive than ever its own vision of how law should develop in the contemporary People’s Republic of China (PRC)SPC action can be broadly consistent with the Chinese Communist Party (CCP) interests, autonomous and expansive at the same time. However, the SPC’s reform initiatives are inevitably constrained by the vested interests of major bureaucratic players as well as the Party’s insistence on maintaining the Court as an integral administrative agency of its public security system. Eric C. Ip is working towards a doctorate at Oxford University's Centre for Socio- Legal Studies. A student of the political science subfields of comparative constitutional design and judicial politics, he earned his undergraduate degree in Government and Laws from The University of Hong Kong, and an LL.M. (distinction) degree from King's College, University of London. He is an Academic Tutor in Law and Politics at St. John's College, The University of Hong Kong; an Academic Fellow at The Institute of Law, Economics, and Politics; and a member of the American Political Science Association and the British Institute of International and Comparative Law. -
Elements of Sociology of the Supreme People's Court
Paper presented at the Conference ”Constitutionalism and Judicial Power in China” (December 12-13 2005, Sciences Po) HIGH TURNOVER AND LOW REPUTATION? ELEMENTS OF SOCIOLOGY OF THE SUPREME PEOPLE’S COURT GRAND JUSTICES (Summary) Hou Meng Department of Sociology, Beijing University This presentation about the Supreme People’s Court (SPC) Grand Justices of the PRC consists of two papers. The first one discusses the high turnover of Grand Justices and the underlying reasons, while the second focuses on the reputation of Grand Justices. Actually, high turnover and low reputation have intrinsic connections. Leaving the Supreme People’s Court: the Turnover of SPC Grand Justices In recent years, SPC has applied judge’s professionalization to all the Courts of China so as to ensure the stabilization of judge group. On the contrary, three Grand Justices have left SPC since 2003. The first one is Zhu Mingsha, the Grand Justice of the first rank and Vice President of SPC, who left for the Committee for Internal and Judicial Affairs of Standing Committee of the National People's Congress (SCNPC) and took the position as its Vice President. The second one is Zhang Jun, the Grand Justice of the second rank, from the Vice President of SPC to Vice Minister of Justice (he came back to SPC in Aug, 2005). The third one is Jiang Bixin, the Grand Justice of the second rank, from the Vice President of SPC to the President of the Higher People’s Court of Hunan Province. What leads to the above inconsistent phenomena? Continual Turnover Leaving the Court is one type of judge turnover. -
1 Different Models for Protection of Constitutionality, Legality And
Prof. Tanja Karakamisheva-Jovanovska, Ph.D 1 Different Models for Protection of Constitutionality, Legality and Independence of Constitutional Court of the Republic of Macedonia 1. About the different models of protection of constitutionality and legality The Constitutional Court is a separate body that serves as a watchdog of the constitution in a given country, and as a protector of the constitutionality, legality, and the citizens' freedoms and rights within the national legal system. From an organisational point of view, there are several models of constitutionality that can be determined, as follows: 1. American model based on the Marbery vs. Madison case (Marbery vs. Madison, 1803) , and, in accordance with the John Marshal doctrine, according to whom the constitutional issues are subject of interest and resolution of all courts that are under the scope of the regular judiciary (in an environment of decentralised, widespread of dispersed control procedure), and based on organisational procedure that is typical for the regular judiciary (incidenter). And while the American model with widespread system of protection of constitutionality gives the authority to all courts to assess the constitutionality of the laws, the European model concentrates all the power for the assessment of the constitutionality on one body. In Europe, there are number of countries that have accepted the American model, such as Denmark, Estonia, Ireland, Norway, Sweden, and in North America, besides the U.S., this model is also applied in Canada, as well as, on the African continent, in Botswana, Gambia, Ghana, Guinea, Kenya and other countries. 2 1 Associate Professor for Constitutional Law and Political System at the University "Sc. -
The Constitutionality of Statutes of Repose: Federalism Reigns
Vanderbilt Law Review Volume 38 Issue 3 Issue 3 - April 1985 Article 8 4-1985 The Constitutionality of Statutes of Repose: Federalism Reigns Josephine H. Hicks Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Constitutional Law Commons, and the Torts Commons Recommended Citation Josephine H. Hicks, The Constitutionality of Statutes of Repose: Federalism Reigns, 38 Vanderbilt Law Review 627 (1985) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol38/iss3/8 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Constitutionality of Statutes of Repose: Federalism Reigns I. INTRODUCTION ...................................... 627 II. STATUTES OF REPOSE ............................. 628 A. Defining "Statute of Repose" ............... 628 B. Arguments For and Against Statutes of Re- p ose ...................................... 632 III. CONSTITUTIONAL ISSUES .............................. 635 A. Equal Protection .......................... 635 B. Due Process ............................... 642 C. Open Courts, Access to Courts, and Remedy. 644 IV. ANALYSIS .......................................... 648 A. Effect of State Constitutional Law .......... 648 B. Future Direction .......................... 652 C. Arguments For and Against National Legisla- tion ..................................... -
Constitutional Courts Versus Supreme Courts
SYMPOSIUM Constitutional courts versus supreme courts Lech Garlicki* Downloaded from https://academic.oup.com/icon/article/5/1/44/722508 by guest on 30 September 2021 Constitutional courts exist in most of the civil law countries of Westem Europe, and in almost all the new democracies in Eastem Europe; even France has developed its Conseil Constitutionnel into a genuine constitutional jurisdiction. While their emergence may be regarded as one of the most successful improvements on traditional European concepts of democracy and the rule of law, it has inevitably given rise to questions about the distribution of power at the supreme judicial level. As constitutional law has come to permeate the entire structure of the legal system, it has become impossible to maintain a fi rm delimitation between the functions of the constitutional court and those of ordinary courts. This article looks at various confl icts arising between the higher courts of Germany, Italy, Poland, and France, and concludes that, in both positive and negative lawmaking, certain tensions are bound to exist as a necessary component of centralized judicial review. 1 . The Kelsenian model: Parallel supreme jurisdictions 1.1 The model The centralized Kelsenian system of judicial review is built on two basic assu- mptions. It concentrates the power of constitutional review within a single judicial body, typically called a constitutional court, and it situates that court outside the traditional structure of the judicial branch. While this system emerged more than a century after the United States’ system of diffused review, it has developed — particularly in Europe — into a widely accepted version of constitutional protection and control. -
Badges of Slavery : the Struggle Between Civil Rights and Federalism During Reconstruction
University of Louisville ThinkIR: The University of Louisville's Institutional Repository Electronic Theses and Dissertations 5-2013 Badges of slavery : the struggle between civil rights and federalism during reconstruction. Vanessa Hahn Lierley 1981- University of Louisville Follow this and additional works at: https://ir.library.louisville.edu/etd Recommended Citation Lierley, Vanessa Hahn 1981-, "Badges of slavery : the struggle between civil rights and federalism during reconstruction." (2013). Electronic Theses and Dissertations. Paper 831. https://doi.org/10.18297/etd/831 This Master's Thesis is brought to you for free and open access by ThinkIR: The University of Louisville's Institutional Repository. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of ThinkIR: The University of Louisville's Institutional Repository. This title appears here courtesy of the author, who has retained all other copyrights. For more information, please contact [email protected]. BADGES OF SLAVERY: THE STRUGGLE BETWEEN CIVIL RIGHTS AND FEDERALISM DURING RECONSTRUCTION By Vanessa Hahn Liedey B.A., University of Kentucky, 2004 A Thesis Submitted to the Faculty of the College of Arts and Sciences of the University of Louisville in Partial Fulfillment of the Requirements for the Degree of Master of Arts Department of History University of Louisville Louisville, KY May 2013 BADGES OF SLAVERY: THE STRUGGLE BETWEEN CIVIL RIGHTS AND FEDERALISM DURING RECONSTRUCTION By Vanessa Hahn Lierley B.A., University of Kentucky, 2004 A Thesis Approved on April 19, 2013 by the following Thesis Committee: Thomas C. Mackey, Thesis Director Benjamin Harrison Jasmine Farrier ii DEDICATION This thesis is dedicated to my husband Pete Lierley who always showed me support throughout the pursuit of my Master's degree. -
Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication
Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2006 Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication Suzanne B. Goldberg Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, and the Constitutional Law Commons Recommended Citation Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 COLUM. L. REV 1955 (2006). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/65 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 106 DECEMBER 2006 NO. 8 ARTICLES CONSTITUTIONAL TIPPING POINTS: CIVIL RIGHTS, SOCIAL CHANGE, AND FACT-BASED ADJUDICATION Suzanne B. Goldberg* This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one under- standing of a social group and its constitutional claims to another. Adjudi- cation of equal protection and due process claims, in particular,requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardationon group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg criti- ques this approachfor its flawed premise that restrictions on social groups can be evaluated based on facts alone and its role in obscuring judicial involvement in selecting among competing norms. -
1 This Memo Addresses the Constitutionality of the Democracy
LEGAL ANALYSIS OF CONGRESS’ CONSTITUTIONAL AUTHORITY TO RESTORE VOTING RIGHTS TO PEOPLE WITH CRIMINAL HISTORIES This memo addresses the constitutionality of the Democracy Restoration Act (DRA), Title I, subtitle E of the For the People Act, which would permit all individuals who are not incarcerated to vote in federal elections, regardless of whether they have a criminal record that makes them ineligible to vote in state elections. The Brennan Center for Justice at NYU School of Law believes that such legislation is constitutional and that there are two sources for Congress’ authority to enact subtitle E: (1) the Election Clause of Article I, section 4; and (2) Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments. I. The Election Clause and Congress’ Inherent Authority to Regulate Federal Elections Congress has very broad powers to regulate federal elections under the Election Clause of Article I, section 4. This clause provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as the Places of chusing Senators.” Indeed, the Clause was drafted with the intent of giving Congress great power to check the abuses of the States in regulating elections. Madison explained that without providing Congress this power, “[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” James Madison, Notes of Debates in the Federal Convention of 1787 423-24 (Athens: Ohio Univ. -
Constitutional Review by the Judiciary in the Netherlands a Matter of Politics, Democracy Or Compensating Strategy?
Constitutional Review by the Judiciary in the Netherlands A Matter of Politics, Democracy or Compensating Strategy? Maurice Adams*/Gerhard van der Schyff** Introduction Constitutional review by the judiciary has become a firm feature of many legal systems since the watershed decision by the United States Supreme Court in Mar- bury v. Madison in 1803.1 Courts across the globe are now regularly called upon to decide the constitutionality, and therefore the applicability or validity, of legisla- tion. Constitutional review is clearly no longer the sole preserve of legislatures. As a matter of fact, many constitutions, especially since the Second World War, con- tain express provisions that empower the judiciary to effect such review as a safe- guard against constitutional neglect or abuse by the legislature. It is then interest- ing to note that the Netherlands, a jurisdiction that is renowned for its human rights culture, is one of the last remaining European countries to still contain a constitutional provision that bars the judiciary from exercising constitutional re- view in respect of statutes (by which we mean acts of parliament). This somewhat controversial position raises important questions and is at pre- sent being reconsidered by the Dutch legislature after the tabling in 2002 of a pro- posal to amend the Dutch Constitution. It is consequently the purpose of this con- tribution to evaluate the Dutch position in respect of constitutional review. This is done by first explaining the current system of constitutional review in the Nether- lands, as well as the proposal to amend the Constitution together with the princi- pal arguments usually advanced against allowing the judiciary to review the consti- tutionality of statutes. -
Separation of Powers and the Independence of Constitutional Courts and Equivalent Bodies
1 Christoph Grabenwarter Separation of Powers and the Independence of Constitutional Courts and Equivalent Bodies Keynote Speech 16 January 2011 2nd Congress of the World Conference on Constitutional Justice, Rio de Janeiro 1. Introduction Separation of Power is one of the basic structural principles of democratic societies. It was already discussed by ancient philosophers, deep analysis can be found in medieval political and philosophical scientific work, and we base our contemporary discussion on legal theory that has been developed in parallel to the emergence of democratic systems in Northern America and in Europe in the 18 th Century. Separation of Powers is not an end in itself, nor is it a simple tool for legal theorists or political scientists. It is a basic principle in every democratic society that serves other purposes such as freedom, legality of state acts – and independence of certain organs which exercise power delegated to them by a specific constitutional rule. When the organisers of this World Conference combine the concept of the separation of powers with the independence of constitutional courts, they address two different aspects. The first aspect has just been mentioned. The independence of constitutional courts is an objective of the separation of powers, independence is its result. This is the first aspect, and perhaps the aspect which first occurs to most of us. The second aspect deals with the reverse relationship: independence of constitutional courts as a precondition for the separation of powers. Independence enables constitutional courts to effectively control the respect for the separation of powers. As a keynote speech is not intended to provide a general report on the results of the national reports, I would like to take this opportunity to discuss certain questions raised in the national reports and to add some thoughts that are not covered by the questionnaire sent out a few months ago, but are still thoughts on the relationship between the constitutional principle and the independence of constitutional judges. -
The Constitutionality of Legislative Supermajority Requirements: a Defense
The Constitutionality of Legislative Supermajority Requirements: A Defense John 0. McGinnist and Michael B. Rappaporttt INTRODUCTION On the first day of the 104th Congress, the House of Representatives adopted a rule that requires a three-fifths majority of those voting to pass an increase in income tax rates.' This three-fifths rule had been publicized during the 1994 congressional elections as part of the House Republicans' Contract with America. In a recent Open Letter to Congressman Gingrich, seventeen well-known law professors assert that the rule is unconstitutional.3 They argue that requiring a legislative supermajority to enact bills conflicts with the intent of the Framers. They also contend that the rule conflicts with the Constitution's text, because they believe that the Constitution's specific supermajority requirements, such as the requirement for approval of treaties, indicate that simple majority voting is required for the passage of ordinary legislation.4 t Professor of Law, Benjamin N. Cardozo Law School. tt Professor of Law, University of San Diego School of Law. The authors would like to thank Larry Alexander, Akhil Amar, Carl Auerbach, Jay Bybee, David Gray Carlson, Lawrence Cunningham, Neal Devins, John Harrison, Michael Herz, Arthur Jacobson, Gary Lawson, Nelson Lund, Erela Katz Rappaport, Paul Shupack, Stewart Sterk, Eugene Volokh, and Fred Zacharias for their comments and assistance. 1. See RULES OF THE HOUSE OF REPRESENTATIVES, EFFECTIVE FOR ONE HUNDRED FOURTH CONGRESS (Jan. 4, 1995) [hereinafter RULES] (House Rule XXI(5)(c)); see also id. House Rule XXI(5)(d) (barring retroactive tax increases). 2. The rule publicized in the Contract with America was actually broader than the one the House enacted.