Constitutional Law Perspective Research Articles

Principle or Ideology? A Comparativist Perspective on the U.S. Controversy Over Supreme Court Citations to Foreign Authorities

This article examines the much debated controversy concerning citations by the U.S. Supreme Court to foreign authorities in the course of deciding constitutional issues from the perspective of comparative constitutional law. This examination is set against the three dominant views in the field: that constitutions address similar issues and that they ought to reach similar results, that they address the same issues but that they ought to reach different results given relevant differences among national and constitutional identities, and that comparativism is mainly ideological, and for the most part steeped in Western biases. Analyzing the U.S. jurisprudence on unenumerated rights generally, and that concerning the rights of homosexuals in particular, subjects that are highly controversial even in the absence of the foreign citation controversy, the article concludes that the whole controversy over citations to foreign authorities is but a sideshow to the main ideological wars over the proper limits of constitutional interpretation. In the course of this analysis, the article explores the scope and limitations of legitimate comparative constitutional work.

The Legal Regulation of Secession: Lessons from Yugoslavia and Canada

Few states have significant constitutional law provisions relating to secession. On the eve of the breakup of Yugoslavia in the 1990s that state's Constitutional Court heard a series of cases dealing with the legality of secession from the perspective of constitutional law. Similarly in 1998 the Supreme Court of Canada handed down a major decision dealing with secession from the Canadian federation. A striking feature of both courts' decisions is the recognition that secession, to be constitutionally legal, requires a constitutional amendment, thereby rendering unilateral secession illegal.

終末期医療と憲法

終末期医療と憲法

Selbstkompetenz als Voraussetzung für Selbstbestimmung behinderter Frauen und Mädchen im Rehabilitationsrechtsverhältnis

Self-competence is a keyword of modern reform legislation in public health and social policy in general and in disability law more specifically. The article defines self-competence from the perspective of constitutional law and describes the new provisions of Book 9 of the Social Code, SGB IX with relation to disabled women and girls. These new provisions are a response to new scientific analyses of the status of disabled women and girls. Their status is determined by multiple discrimination and by threat of sexual violence. Within this context self-competence means capacity for self-determination. Such an interpretation is in line with reforms in disability law, i. e. the adoption of anti-discrimination law. With this reform legislators pursue a shift in paradigm from the medical to the social model of disability. Such a paradigm shift demands new paths to be treaded in rehabilitation. Rehabilitation agencies have corresponding duties to protect and to promote.

Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun from a Comparative Constitutional Perspective

In March 2004, the National Assembly of South Korea impeached President Roh Moo-hyun and brought about an immediate suspension of Roh's presidency. Two months later, the Constitutional Court of Korea restored the status quo by dismissing the impeachment and reinstating the President. This episode marks the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body. This article focuses on one slice of this remarkable turn of events: its constitutional dimension from the perspective of comparative constitutional law. After explaining the constitutional court's decision, this article discusses the significance of the ruling for three broad questions of comparative constitutional law: judicial decisionmaking as a distinct form of constitutional interpretation; the dual nature legal and political of the impeachment process and the proper role of the courts in it; and historical, political, and institutional factors that lead to the doctrine of judicial supremacy.

Pemilihan Presiden dan Wakil Presiden Secara Langsung Persperktif Politik dan Hukum Tata Negara

The 2004 national election will give us such different discourse about our national leader July2004. This is the time to that the people will choose their own president and the vice president. This is, can be seen as a good achievement from the perspective of constitutional law. By choosing their national leader directly, the can determine who will be responsible to run the government in the following five years. The weakness of the old presidential election is that the aspiration of representatives may different from the people aspiration, as a result, people will have a president who actually they don’t want. Through direct presidential election, not only the president will be more legitimated, but also, more national stability will be gained.

The evolution of anti‐fraud policy in the European Community from a constitutional law perspective

Cites the fight against fraud as a high priority for European citizens, European institutions and national parliaments. Asks what path the European institutions follow since the adoption of the founding treaties in order to combat fraud and its inevitable effects. Overviews the connection between the allocation of competence and the legal basis principle concerning anti‐fraud policy. Follows by tackling the effects of budgetary mechanisms and finishes by attempting to shed light on the development of internal anti‐fraud structures within the Commission. Allows the reader to understand the conflict between the acquisition of powers for the Community institutions to fight fraud and the protection of criminal law jurisdiction as the prerogative of the national state.

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: ‘Practical’ Convergences and ‘Theoretical’ Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules.This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference.It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues.The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty.This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies.A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process.The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’.In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.

The Structure of Public Administration in Jordan: A Constitutional and Administrative Law Perspective

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Religionsfreiheit und Rechtsgüterschutz. Strafrechtliche Aspekte von Sekten

Abstract Religious sects and their practices have become highly topical in the recent past in Germany. The call for criminal sanctions in order to tackle actual or presumed misconduct is becoming louder and louder. The author, a criminal law professor, analyses the present discussion and puts it into a constitutional law perspective. Any civil society that aims to optimise the scope of the personal freedoms of its members must withstand the temptation of creating a special regime of criminal law rules just to combat religious sects and their practices. Criminal law has tobe applied uniformly in the whole society. Therfore, criminal sanctions can only be handed out, when practices infringe intolerably with the individual' s rights protected by the law.

Electoral Reform in Japan: A Comparative Constitutional Law Perspective

The electoral systems of both Japan and New Zealand were recently reformed, and both states had their first elections under the new regimes in October 1996. This article considers some features of the two electoral systems from the point of view of the legal context in which the electoral reforms were made, and of the main reasons for those reforms.

Constitutional Literacy: A Core Curriculum for a Multicultural Nation.

Journal Article Constitutional Literacy: A Core Curriculum for a Multicultural Nation. By Toni Marie Massaro. (Durham: Duke University Press, 1993. viii, 200 pp. $24.95, ISBN 0-8223-1364-2.) Get access Kevin Brown Kevin Brown Indiana University, Bloomington, Indiana Search for other works by this author on: Oxford Academic Google Scholar Journal of American History, Volume 81, Issue 4, March 1995, Pages 1855–1856, https://doi.org/10.2307/2081877 Published: 01 March 1995