Constitutional Matters Research Articles

European Union Constitution Making in Comparative Perspective

This paper compares constitution-making in the European Union, with a particular focus on the convention on the Future of Europe, with constitution-making in Canada and Belgium. It proposes a framework for understanding the process of constitution-making that focuses on the shifting arenas and actors involved. In the case of the Convention on the Future of Europe, moving constitutional negotiation to an arena removed from actual decision-making powers has also occurred in Canada and Belgium. This move has the advantage of freeing up the discussion of constitutional matters, but the disadvantage that agreements reached at this stage may fail when they are moved to a decision-making arena - in the case of the Convention's draft constitutional treaty, the movement to the Intergovernmental Council. In all three cases, the fact that the status-quo, however unsatisfactory, was available as a default option meant that the costs of failure to reach a decision were not excessive.

B2. PALESTINIAN PM MAHMUD ABBAS, RESIGNATION SPEECH TO THE PALESTINIAN COUNCIL, RAMALLAH, 6 SEPTEMBER 2003.

Abbas's speech, a systematic defense of his government in the areas of negotiations, financial affairs, constitutional matters, security, and truce talks, provides a detailed behind-the-scenes account of politics within the PA. It was published in full by al-Hayat on 10 September and published in Mideast Mirror the same day.

The Labour Party and British Republicanism

The famous detective, Sherlock Holmes, once solved a case by referring to “the dog that did not bark.” In the past 250 years of British history, republicanism is another dog that did not bark. This is particularly true of supposedly our most radical major political party, the Labour Party. Over the monarchy, as over constitutional matters generally, Labour’s instincts have been conservative. Even after 1997, when the party, led by Lord Irvine, has indeed embarked upon major constitutional ref...

Origins of the Modern Chinese State (review)

Reviewed by: Origins of the Modern Chinese State Susan Mann (bio) Philip A. Kuhn . Origins of the Modern Chinese State. Translated by Pierre-Étienne Will. Stanford: Stanford University Press, 2002. xii, 162 pp. Hardcover $25.00, ISBN 0-8047-4283-9. Originally published in French as Les Origines de l'État chinois moderne (Paris: Éditions de l'École des Hautes Études en Sciences Sociales, 1999). Philip Kuhn's elegant series of essays on the origins of the modern Chinese state is aptly dedicated to the late Benjamin I. Schwartz, whose influence on—or resonance with—Kuhn's own thinking about Chinese history is clear throughout. The polarities in Chinese thought that Schwartz loved to probe1 and the deep linkages between the society of the old empire and the configuration of the new nation-state that Schwartz identified in his work on Yan Fu and Mao Zedong2 are the same problems that animate Kuhn's historical inquiries. Admirers of Kuhn's own writings will find in this book a consummate summing up of decades of research in late imperial and twentieth-century Chinese history. The chapters move constantly back and forth, across the twentieth-century divide and over to European and American intellectual history, seamlessly meshing archival gems with insights from wenji, gazetteers, and other published sources. [End Page 196] The book's chapters began as lectures presented at the Collège de France in 1994. They were first published in French, and they were developed, Kuhn tells us, in the course of close interactions with his colleague Pierre Etienne-Will. To the specialist reader of this English-language edition, the core question Kuhn poses is this: how and why did largely successful efforts to broaden political participation among late imperial literati act paradoxically to strengthen and extend the hand of the central government? Or, what was (and what is) the hope for the development of democratic institutions in China? Like Wm. Theodore de Bary, who in a similar series of essays has pondered the dependency of China's learned elite on a strong authoritarian ruler,3 Kuhn is not optimistic. At the same time, his book takes note of enduring legacies of late imperial culture that may, ironically, check some of the most powerful antidemocratic influences in contemporary China. Finally, he continually cautions against reading the Chinese evidence through an ethnocentric historical lens. Properly understood, leaders who seem "progressive" to Western eyes, such as Wei Yuan or Feng Guifen, are actually responding to the "older" agendas that shaped China's constitutional history (pp. 31, 47, 51, 55). From start to finish, the book uses the language of contemporary politics to discuss problems in both the late empire and the modern state: "national" problems and "constitutional" issues identified in the eighteenth century are traced through the nineteenth and twentieth. The term "constitutional" is given a specific definition on page 2, making it critical to the logic of the rest of the book: by constitutional, Kuhn simply means "a set of concerns about the legitimate ordering of public life." These constitutional matters, in Kuhn's reading, may be summed up as the following enduring problems: how to extract an agricultural surplus to feed the cities and support the government, and how to govern at the local level while maintaining a centralized bureaucracy and a flourishing commercial economy. Chapter 1 begins by stressing the national scope of eighteenth-century social, political, and economic problems, from unemployment (and the immense new constituency of out-of-office literati that it produced) to what Kuhn depicts as the courtier Heshen's "extractive machine," which siphoned off bribes and surcharges to vast networks of middlemen and officials engaged in tax collection; and from there to the inherent structural weaknesses of local government, found everywhere in Qing China, despite creative attempts at reform. This, in other words, set the stage for the struggle to redefine the relationship between locale and center that unfolded in the centuries to come. In conjunction with this "national" picture, Kuhn locates a "national" consciousness within the eighteenth-century civil-service elite, and in this national awareness or consciousness he identifies a complex of literati self-perceptions. Learned men who passed the...

Playing it safe: how the Supreme Court sidesteps hard cases and stunts the development of the law

It is one of the unspoken truths of the American judicial system that courts go out of their way to avoid having to decide important and controversial issues. Even the Supreme Court from which the entire nation seeks guidance frequently engages in transparent tactics to avoid difficult, politically sensitive cases. The Court's reliance on avoidance has been inconsistent and at times politically motivated. For example, liberal New Deal Justices, responding to the activism of a conservative Court, promoted deference to Congress and the presidency to protect the Court from political pressure. Likewise, as the Warren Court recognized new constitutional rights, conservative judges and critics praised avoidance as a foundational of judicial restraint. And as conservative Justices have constituted the on the Court in recent years, many liberals and moderates have urged avoidance, for fear of disagreeable verdicts. By sharing the stories of litigants who struggled unsuccessfully to raise before the Supreme Court constitutional matters of the utmost importance from the 1970s-1990s, Playing it Safe argues that judges who fail to exercise their power in hard cases in effect abdicate their constitutional responsibility when it is needed most, and in so doing betray their commitment to neutrality. Lisa Kloppenberg demonstrates how the Court often avoids socially sensitive cases, such as those involving racial and ethnic discrimination, gender inequalities, abortion restrictions, sexual orientation discrimination, and environmental abuses. In the process, the Court ducks its responsibility to check the more politically responsive branches of government when majority rule pushes the boundaries of constitutional law. The Court has not used these malleable doctrines evenhandedly: it has actively shielded states from liability and national oversight, and aggressively expanded standing requirements to limit the role of federal courts.

Health Information Privacy: A Disappearing Concept

Rapid advances and exponential growth in computer and telecommunications technology have taken individual records and papers revealing the most intimate details of one’s life, habits, and genetic predisposition from the private sector into the public arena in derogation of privacy considerations. Although computerized medical information offers a means of streamlining and improving the health care delivery system through speed and enormous storage capacity, it also presents new challenges as it affects the right of privacy and expectation of confidentiality, creating serious ethical and legal issues. Other considerations include constitutional matters such as loss of liberty when one is compelled to remain in an undesirable or unsuitable job so that insurance will not be canceled or the inability to secure another more suitable position due to genetic predisposition and denial of equal protection of the laws if one is stigmatized because one belongs to a certain ethnic or racial group that exhibits a particular genetic propensity. Collateral questions concern the propriety of disclosure of confidential health care information, including genetic data. This article also considers the proposed federal guidelines for a health information privacy law.

Free Speech: The Lost Years

Free Speech: The Lost Years David M. Rabban In this essay, I intend to cover three basic topics. First, I will explain how I became inter­ ested in the history offree speech in the United States before World War I. Second, I will present an overview ofmy unexpected discoveries about this history in the years between the Civil War and World War I. Finally, I will conclude by pointing out what I perceive to be some striking similarities between the analysis offree speech before World War I and significant current criti­ cisms of First Amendment decisions by the Supreme Court since the 1970s. My interest in free speech before WorldWar I first developedwhile I was a student at Stanford Law School between 1971 and 1974. During my three years at Stanford, I took general survey courses in constitutional law and American legal history, advanced courses in constitutional law, and seminars in constitutional history and free speech. As I completed these classes, I increas­ ingly was struck by the common, though largely unarticulated, assumption that no significant legal interpretation of free speech had occurred between 1801, when the Sedition Act of 1798 expired, and 1917, when Congress passed the Espionage Act soon after the United States en­ teredWorldWar I. Scholars typically viewed Justice Holmes’ 1919 decision in Schenckv. United States' as the Supreme Court’s initial confrontation with the meaning offree speech, and “Free­ dom of Speech in War Time,”2 published three months later by Professor Zechariah Chafee, Jr., as the earliest major law review article dealing with the subject. They similarly regarded the American Civil Liberties Union (ACLU), founded in 1920, as the first significant organization devoted to defending freedom of expression. Many perceived the legal history of free speech since World War I primarily as the development of a “worthy tradition”3 of protection for un­ popular speech, begun by the famous, mostly dissenting, opinions ofJustices Holmes and Brandeis from 1919 through the 1920s, and reaching fruition in a series of landmark decisions by the liberal Supreme Court in the 1960s and early 1970s. 146 JOURNAL OF SUPREME COURT HISTORY By the end ofmy third year oflaw school, I questioned the assumed absence of legal dis­ putes over free speech during the long period between 1800 and 1917. The social unrest of the late nineteenth and early twentieth centu­ ries—the years immediately before the sup­ posed beginning ofFirstAmendmentjurispru­ dence—seemed especially likely to have pro­ duced debate and litigation about free speech. Just in the decades immediately before 1917,1 suspected, agitation by workers, anarchists, and advocates of birth control tested the meaning of free speech. My hunch proved correct, and my recent book, Free Speech in Its Forgotten Years (Cambridge University Press, 1997), is the re­ sult. An enormous variety ofcases at all levels of the judicial system refutes the widespread assumption that litigation over free speech be­ gan abruptly with prosecutions under the Es­ pionage Act of 1917. These cases, however, have been obscured ever since Chafee mini­ mized and mischaracterized them in his 1919 article, “Freedom ofSpeech in WarTime.”4 Re­ lying uncritically on Chafee, subsequent schol­ ars have not independently examined the pre­ war period. They exceed even Chafee in their neglect of the substantial litigation over free speech before World War I. For example, no major casebook on constitutional law includes a single decision before 1917 in its section on freedom of expression.5 Only a few scholars have tried to explain the assumed absence ofearlierjudicial encoun­ ters with free speech issues. Like most people interestedin constitutional matters, these schol­ ars think mostly about the federal courts, par­ ticularly the Supreme Court. As a result, they have focused on possible factors limiting fed­ eral jurisdiction. The text ofthe First Amend­ ment prohibits only Congress from abridging free speech. Some have asserted that the Sedi­ tion Act of 1798, which expired in 1801, was the only federal legislation before the Espio­ nage Act of 1917 that posed significant threats to free speech. An important Supreme Court decision in 1812 held that federal courts did not have jurisdiction over common-law crimes,6 thereby reducing their exposure to free speech issues. The ratificationofthe Fourteenth...

Politics and religion in the United States

There is a complex relationship between religiosity and secularism in the American experience. America is notable both for its strict institutional separation of church and state, and for the strong role that religion has played in its major social movements and ongoing political life. This book seeks to illuminate for readers the dynamics underlying this seeming paradox, and to examine how the various religious groups in America have approached and continue to approach the tensions between sacred and secular. This much-anticipated revision brings Corbett and Corbett’s classic text fully up to date. The second edition continues with a thorough discussion of historical origins of religion in political life, constitutional matters, public opinion, and the most relevant groups, all while taking theology seriously. Revisions include fully updating all the public opinion data, fuller incorporation of voting behavior among different religious and demographic groups, enhanced discussion of minority religions such as Mormonism and Islam, and new examples throughout.

Markets and Regulation: On the Contrast Between Free-Market Liberalism and Constitutional Liberalism

A liberalism that does not close its eyes to the constitutional level of choice must seek to extend the same fundamental logic that it applies in its theory of the market to the questions of what the sovereignty of the individual can mean, and how it can be secured, in constitutional matters. The problems that arise with such an extension to the constitutional level may well be more difficult than those that the liberal theory of the market has to deal with, and the conclusions that a constitutional liberalism arrives at may be less determinate that what the free-market approach pronounces. Yet, if these difficulties are inherent in the subject matter, and if the indeterminacy follows from arguments that we are required to accept, then denying them does not seem to be a promising strategy for strengthening the liberal paradigm.

Public Reason and Political Conflict: Abortion and Homosexuality

Is it possible for people who sharply disagree about important questions of morality, including those pertaining to abortion and homosexuality, to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties? This question is not about the possibility of political compromise; rather, it concerns the possibility of a certain type of moral agreement. This type of moral agreement is not agreement about whether abortion or homosexual conduct, for example, are right or wrong. Instead, it is agreement about basic principles of justice for a society composed of people who disagree about such issues. One possibility is for people who disagree about the morality of particular acts or practices to agree upon fair procedures for the political resolution of moral disagreements. For example, people who disagree about the morality of abortion might, as a constitutional matter, agree upon democratic procedures for setting public policy on abortion. However, people of strong and settled conviction on either side of the debate over abortion cannot reasonably be satisfied ofthe justice ofthe fundamental law of their country simply because the procedures used to arrive at a resolution were democratic. From the pro-life point of view, any regime of law (including one whose pedigree is impeccably democratic) that deprives unborn human beings of their right to legal protection against homicide is gravely unjust.1 Similarly, from the pro-choice viewpoint, restrictions on a woman's right to abortion are seriously unjust even if they were put in place by democratic procedures. From either perspective, the question of abortion is viewed as a matter of fundamental justice whose proper resolution is essential to the full moral legitimacy of the constitutional order. In this respect, the social conflict over abortion closely resembles the conflict over slavery. Of course, pro-life and pro-choice advocates may, for

The Constitutional Case Law of Japan, 1970 through 1990

This article is a book review of Lawrence N Beer and Hiroshi Itoh The Constitutional Case Law of Japan, 1970 through 1990 (University of Washington Press, Seattle, 1996) Pages i-xiv, 1-688 including appendices and index. The book contains 47 judgments of Japanese courts on constitutional matters delivered in the period 1970-1990, with most being from the Supreme Court of Japan. The editors, in the Introduction, provide an overview of Japan's constitutional law since 1945 and set the judicial developments in the general context of the Constitution of Japan, in its political setting and, more generally, in an international frame. Angelo praises the authors, concluding that this book is essential for all interested in legal and political developments in Japan.

What is ‘strong government'?

Tom Ellis comments critically on the report by the Constitution Unit entitled ‘An Assembly for Wales’. In its report entitled ‘An Assembly for Wales’ the Constitution Unit, a high‐powered think‐tank dealing with constitutional matters, draws two conclusions about electoral systems. The first is that ‘the choice [of system for electing a Welsh assembly] lies between a majoritarian system (such as first‐past‐the‐post) or a system of proportional representation’. The other equally categoric conclusion is that ‘Majoritarian systems are more concerned with producing strong government, and proportional systems with producing a representative parliament’. Both conclusions are characteristic products of the conventional thinking which passes for political analysis in Britain, and they accurately reflect the prejudices of the party‐dominated oligarchic governing system. Their shallowness is a consequence of the assumptions unwittingly influencing British political debate. The thinking, when not deliberately perverse, is conditioned partly by Britain's constitutional tradition and partly by the empirically‐minded English temperament. It has produced in this case two cliches, each of which is just plain wrong.

An Independent Quebec in NORAD and NATO: A Long and Winding Road?

Introduction Were another referendum to be held in Quebec resulting in a majority vote in favor of sovereignty, how would security relations be shaped between an independent Quebec, Canada, and the United States of America? Would it be possible for Quebec to fully integrate itself into existing Canada-United States bilateral agreements on defense like NORAD, and into a multilateral defense organization such as NATO? Conscious that the transition period between a Yes vote for sovereignty and the conclusion (or not) of a new partnership between Canada and an independent Quebec will be extremely crucial, the two scenarios that will be presented in this paper are based on the assumption that the federal government would not question the legitimacy of the referendum or its results and would negotiate the terms of secession with the government of Quebec. Reality, certainly, could be otherwise. The paper is divided into three parts. In the first part, I do an overview of Quebec's sovereigntist positions over the last twenty years on NORAD and NATO. (1) In the second part, I look at what several experts have said about the possibility for an independent Quebec to be a party to NORAD and a member of NATO. In the third part, I present my two scenarios on how Quebec could be integrated in the North American and the Euro-Atlantic security communities. Background Overview When it comes to constitutional matters in Canada, there is no doubt that a Parti Quebecois government in Quebec can be described as revisionist. In May 1980, the PQ government, led by Rene Levesque, organized a referendum to get a mandate to negotiate what was called then Sovereignty-Association. In October 1995, Quebeckers were asked once again to vote in a referendum on sovereignty with an economic and possibly political partnership with Canada. Thus Quebeckers have twice rejected the sovereignty option. At the present moment, no one can tell whether the sovereigntist side might prevail. On the question of security alliances, even if PQ militants were inclined to be neutral in the early seventies, the party elite has seemed to be less inclined. For instance, in a February 1978 interview in the Times, Rene Levesque clearly said that an independent Quebec should have normal ties with the West, NATO included. (2) A year later, the Quebec government published its Sovereignty-Association platform. This document would become the government's battlehorse during the 1980 referendum campaign. A very short section of the document dealt with defense issues. (3) It stated that Quebec would continue to occupy a strategic position in NORAD and would continue to fulfill its defense obligations in this continental defense structure. As for its membership in NATO, the government considered that Quebec's future was closely tied to European and American democracies. The authors of the document stressed that Quebec's membership in NATO would also further international exchanges. This view is similar to the current one held by Eastern and Central European countries who want to join NATO. Frankly speaking, defense issues were not really a hot topic during the 1980 referendum. (4) Most people in the Quebec government knew that, in the Cold War context, it was not in the interest of an independent Quebec to create a breach in the security system of the Euro-Atlantic community. It surely did not want to be perceived by the United States as the Cuba of the North. From 1980 to 1990, the Quebec question was not of major interest outside Quebec and Canada. However, the failure to ratify the Meech Lake accord in 1990, and a majority No vote in Quebec and in the balance of the country in the Charlottetown Accord referendum in 1992 put the sovereignty question back on the Canadian political agenda. Polls in Quebec showed that this option could be a winner. In 1993, the Liberal party came back to power in Ottawa under the leadership of Jean Chretien, followed a year later by the PQ victory in Quebec. …

L'Irlande et l'intégration européenne

The participation of the Republic of lreland in the european integration brought into question certain aspects of the 1937 Constitution which established a State with a vigorous affirmation toward national sovereignity and international independence, which at the same time reflected a society of traditional catholic values. After joining the European Communities in 1972 and signing both the Single European Act in 1986 and the Treaty on European Union in 1992, Ireland proved itself to be an important actor in the european integration process. In each of these importants events constitutional amendments were introduced to permit the ratification of the treaties and eliminate all obstacles to allow community law to prevail over national law. In all three cases a necessary referendum proved strong support among the Irish people, for the european ideal. Sometimes however, the enthusiasm of political forces had to be balanced with difficult questions concerning legal and constitutional matters having profound implications for the social political context of the country.

The Outbreak of the Irish Rebellion of 1641.

Perceval-Maxwell gives considerable attention to the structure of the Irish parliament in 1640 and 1641 and the decisions made by that body in both the Commons and the Lords. He argues that initially there was a broad consensus between Protestant and Catholic members of parliament on the way Ireland should be governed and on constitutional matters relating to the three kingdoms, but that this consensus was not shared by those who controlled the Irish council. He places particular emphasis on negotiations between members of the Irish parliament who were sent to England and the English council, and on the way events in Ireland influenced both English and Scottish opinion. In this context, the army raised in Ireland to counter the Scottish covenanters, and the failure to ship this army abroad before the rebellion broke out, were of crucial importance. Perceval-Maxwell contends, contrary to the opinion of other historians, that Charles I was not primarily responsible for this failure and was not plotting to use this army against the English parliament. The author explains the plotting that actually took place and provides an account of the initial months of the rebellion as it spread from county to county. In conclusion he reveals how the rebellion was perceived in England and Scotland and how these perceptions contributed to the outbreak of civil war in England. Why the Irish rebellion was important outside of its Irish context is well known but this book is the first to deal with how it became significant. It will be of particular interest to British as well as Irish historians.

Freedom and growth: Do constitutions matter?

This paper uses an augmented Solow model, with cross section data, to measure the effect on per-capita income of a) the entrenchment of various rights in a country's constitution and b) the level of economic freedom in a country, broadly construed. The results suggest that entrenchment,per se, of any single right seldom has a significant general economic effect, while the effect of economic freedom is significant and substantial. The paper then considers whether such evidence could support the proposition that “constitutions do not matter.” While it concludes otherwise, it does caution against incurring excessive negotiation costs to obtain entrenchment of a comprehensive “wish list” of rights.

The Impact of Constitutions on Economic Performance

Constitutions matter for economic performance to the extent that they promote stability, accountability, and credibility. This article considers the nature of political constitutions and their impact on economic efficiency and economic security under three aspects: the basic rights laid down in the constitution, the structure of government, and the stringency of amendment procedures. While emphasizing that constitutions can be useful by serving as precommitment devices, the analysis also emphasizes the dangers of rigidity and the need for flexibility.

Sterling, the 'Minor' Territories, and the End of Formal Empire, 1939-1958

postwar reconstruction and decolonization are among the most prominent issues in the study of British history during the two decades after the Second World War, though they are usually placed side by side rather than integrated. The purpose of this article is to consider two of the themes which can be identified in the literature by surveying the financial relations within the sterling area and the empire in particular, and by speculating about the connection between international monetary relations and decolonization.2 The scholarly literature on Britain's postwar imperial policy has recently greatly increased.3 Many authors have concentrated on imperial 'decline' and 'retreat'.4 Others have reinterpreted the I940S in the light of new evidence of continuing imperial 'strength'.' A large portion of the research now available deals with political and constitutional matters, and with the working of the 'official mind'. Parallel to the discussion of decolonization, there exists a substantial amount of work on financial relationships with the empire, specifically the sterling area. However, most of this literature

Higher Education Finance and Economic Inequality in Greece

The constitution of Greece prohibits the operation of private tertiarylevel educational institutions. Education, according to Article 16 of the 1975 constitution, is free and the responsibility of the state. The purpose of such legislation in Greece and in many other countries is to provide equal access for all citizens. Increased economic integration in Europe, especially after 1992, is expected to influence changes in the financing of higher education and to lead to a debate over constitutional matters regarding the issue of private universities. In recent years, economists have criticized the education system and questioned the state monopoly over higher education.' Of particular concern is that public subsidization of higher education may result in a transfer of resources from the poor to the rich. The wealthier groups derive greater benefit from, and are disproportionately represented in, further education. In other words, despite the best intentions of policymakers, free higher education may not alleviate social disparities. The reason for this perverse effect is that, although university education is free of charge, the few slots available each year must be obtained through competitive examinations. Only children from wealthier families can afford the cost of private preparation for such examinations and the forgone earnings associated with university study. Moreover, the restricted supply of tertiary-level places has resulted in a mass exodus of Greek students abroad.2 This represents a serious on foreign currency reserves and a substantial brain drain of educated manpower from Greece to other nations.

Polish constitutional heritage in the light of the French revolution

Summary Affected by the political influences from America and France, Poland's constitution of 1791 revised the electoral ordinance for the gentry, modified the administration of the cities and gave them representation in the Seym, and finally instituted a hereditary monarchy with checks and balances between the branches of government. The opposition of domestic conservatives, aided by armed foreign intervention, secured the repeal of this constitution in 1793. The result was a national insurrection in 1794 the defeat of which led to the final partition of Poland. Napoleon's 1807 Prussian campaign led to the creation of the Duchy of Warsaw, whose constitution was based on French egalitarian ideas and whose civil law was the Code Napoleon. The constitution separated executive and legislative functions and placed constitutional matters in the hands of the executive. In 1815 the Poles secured from tsar Alexander I the establishment of a hereditary constitutional monarchy with an appointed senate, an elected Seym and an extensive Bill of Rights. The system eventually failed when tsar Nicholas I violated the constitution and public dissatisfaction with the conduct of his brother, Constantine, precipitated the revolution of 1830.