Constitutional Matters Research Articles

EU Criminal Policy at a Crossroads between Effectiveness and Traditional Restraints for the Use of Criminal Law

The article studies EU criminal policy from a constitutional perspective. Since all EU secondary law measures must be founded on a legal basis – on a specific provision of the Union's constitution – EU criminal policy is also a constitutional matter in this sense. Initially, the article clarifies what EU criminal policy is, putting it into a broader context presenting it as a public policy issue in a multi-level constitutional framework. Secondly, the article demonstrates the key elements of EU criminal policy. The article answers the questions of what the interrelationship between the choice of legal basis and the EU criminalisation principles is and whether the EU criminalisation principles are effective in terms of limiting the use of EU-level criminal law.

In the Beginning There Was None: Supreme Court Review of State Criminal Prosecutions

It seems so obvious that the Supreme Court needs to have appellate jurisdiction to review state criminal prosecutions that involve questions of federal law that everybody assumes the Court has always possessed this jurisdiction. But it was not always so. This article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that Section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions rejecting federal-law-based claims of right, immunities, or defenses. Section 25 is one of the most important provisions of the original judiciary act that gave enduring institutional shape to a federal court system incompletely constructed by Article III. In the landmark 1821 case of Cohens v. Virginia, the Supreme Court held, as a constitutional matter, that the Supreme Court could engage in appellate review of state criminal prosecutions that fit within Article III’s extension of the federal judicial power to cases arising under federal law. The claim that the Court categorically lacked statutory jurisdiction over state criminal prosecutions under Section 25 was neither raised nor decided. And for almost two centuries nobody has thought to examine the issue despite the obvious importance of correctly understanding this key provision of the foundational statute for federal jurisdiction. Building on commentaries by a contemporary critic of Cohens, the astute and once-eminent (but now obscure) Charles Hammond of Ohio, this article offers a combination of neglected arguments and newly discovered evidence tending to establish that Section 25 did not encompass Supreme Court appellate review of state criminal prosecutions. This article’s rediscovery of civil-only Section 25 and its recovery of Charles Hammond’s constitutional vision not only have immediate implications for ongoing scholarly debates over the extent of congressional control over federal jurisdiction, but also have potentially wide-ranging import for generating new insights into the liquidation of Article III and the constitutional construction of the federal judiciary.

Religious Freedom: Jefferson’s Legacy, America’s Creed by John Ragosta (review)

Reviewed by: Religious Freedom: Jefferson’s Legacy, America’s Creed by John Ragosta Christopher Michael Curtis (bio) Keywords Thomas Jefferson, Religious freedom, Separation of church and state, Virginia Religious Freedom: Jefferson’s Legacy, America’s Creed. By John Ragosta. (Charlottesville: University of Virginia Press, 2013. Pp. 293. Cloth, $39.50.) In the past decade, an abundance of scholarship has redirected focus on the meanings and consequences of disestablishment following the American Revolution. Phillip Hamburger, Steven K. Green, Donald Drakeman, John Hutson, and Sarah Barringer Gordon have examined the multiple ways by which the separation of church and state were negotiated and defined. Undoubtedly, much of this scholarly interest has been spurred by the persistent ideological intensity that informs debates about religion and the public square, as well as by the recurrent internecine, denominational property disputes that have captured headlines and occupied the courts. John Ragosta’s Religious Freedom: Jefferson’s Legacy America’s Creed contributes to this robust body of scholarship. It follows on the heels of [End Page 501] his 2010 monograph, Wellspring of Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty, which emphasized the central roles played by Virginia’s religious dissenters during the Revolution. In Religious Freedom, Ragosta now turns to an ambitious examination of the ideological influence that Thomas Jefferson had on the development of the legal and constitutional doctrines of religious liberty, not just in Virginia but in the nation at large. Ragosta asserts the centrality of Jefferson’s ideas to understanding the fundamental historical meaning of religious freedom in America and contends that this Jeffersonian understanding created and informed a national consensus about the proper constitutional divisions between church and state. At least, that is, until recently. Pointing to Chief Justice William Rehnquist’s dissenting opinion in the 1985 case of Wallace v. Jaffree, Ragosta suggests that the Jeffersonian consensus has come under attack by judges and academics who seek to undermine the “high and solid wall between church and state” by casting the establishment clause of the First Amendment in opposition to its companion free exercise clause (2, 4). Given this apparently troubling dynamic, Ragosta explores whether or not Jefferson’s vision of religious liberty was as influential as the United States Supreme Court declared it was in the case of Reynolds v. United States (1879), when Justice Waite deemed the Virginia Statute for Religious Freedom and Jefferson’s letter to the Danbury Baptists to be authoritative statements defining the foundations of the First Amendment. Ragosta begins his inquiry with a serious effort to analyze Jefferson’s often conflicted ideas about Christianity, which ultimately informed his conception of religious liberty. He portrays Jefferson in the common view as Enlightenment disciple of reason, but equally, and significantly, as someone steeped in the doctrines and practices of colonial Virginia’s established church, as well as someone who, after disestablishment, also affiliated himself with the newly organized Episcopal Church. These affiliations lend context but the portrait is certainly not one of a pietistic Jefferson. Instead, a theology of natural religion prevailed, with Jefferson appearing a self-professed Christian who disdained the doctrines of divinity and resurrection. Jefferson graciously bestows praise on Jesus for the universality of his moral teachings, but suggests that he would have done things a bit differently had the lot of mankind’s salvation fallen instead to the Sage of Monticello. Ragosta neatly exposes the arrogance [End Page 502] of Jefferson’s theology but is less explicit about its consequences. In re-conceptualizing liberty of conscience by conflating it with individual expression, Jefferson championed the heresy of creating God in one’s own image and thus cast his model of religious freedom in stark opposition to orthodox Christianity. Ragosta does not pursue this particular vein of Jefferson’s legacy of religious freedom—especially its ramifications for the proliferation of evangelical Christianity—but instead focuses exclusively on constitutional matters that formed the intellectual consensus for the first two centuries of national history. Chapters 2 and 3 depict the social and political context that informed the enactment of Virginia’s Statute for Religious Freedom. They offer little information beyond a synthesis of the pioneering scholarship of Thomas Buckley...

National Assembly and its Controversial Pension : A Critique

The National Assembly is proposing life pensions for its principal officers. The decision of the National Assembly on the life pensions for the Senate President, his deputy, the House of Representatives Speaker and the Deputy Speaker has continued to generate controversy. Many Nigerians believe that the move smacked of egocentricity and insensitivity to the mood of the polity. And it has attracted so much condemnation. If the proposal becomes law, then, the principal officers will be entitled to a pension for life at a rate equivalent to the annual salary of the incumbent President and the Deputy President of Senate, the Speaker and the Deputy Speaker of House of Representatives. In the usual characteristic of the Nigerian political elite, the Nigerian Senate took an egocentric stand against the greater good of the Nigerian people, as the lawmakers overwhelmingly voted against local government autonomy but endorsed life pension for the Senate President and Speaker of the House of Representatives. What is clear from this self-serving action is that, our collective interest as a people is never paramount to these so-called representatives. Having conducted a public hearing in various constituencies across the land during which Nigerians overwhelming advocated total autonomy of the local government and expressed their views on other constitutional matters, one would have expected our senators to allow the wishes of the people to prevail. Rather, they chose to be on the inglorious part of history, dissipating their energies in promoting mundane desires instead of solving the peoples’ ultimate desire – welfare. The paper examines the controversial proposal and its implications for the polity.

Whither Sudan?

This article deals with the political transformation of Sudan since the colonial period. It also depicts the instability of the governing process since independence by showing how the traditional social and political organization of society has played a major role in shaping its future. It shows how the ruling Islamic regime, while reinforcing the tribal factor in political and constitutional matters, has at the same time exacerbated the problem of ethnicity and religious differences in a multiethnic society. Beneath the whole political spectrum the article offers a detailed description of the economic conundrum of this country as well as its failure in building a ‘nation-state’. It concludes in pointing out how in the current conflicting situation the future of Sudan is being jeopardized.

The Limitations of Tax Law Interpretation in the United States

This paper has been prepared in response to the 2013 International Tax Law Conference: The Internal and External Limitations of Tax Law Interpretation, Comparative Legal Approaches from Different Countries in Korea. That Conference was held to consider a case under Korean law where the Korean Supreme Court and the Korean Constitutional Court found that where a certain revenue statute was replaced, both the statute and its addendum (or supplemental provisions) are nullified unless special circumstances exist. The impetus of the conflict in the case that stimulated this conference is the divergent findings of whether there were special circumstances where a certain revenue statute was replaced which would have allowed for the continued use of the relevant portion of the prior statute’s addendum; while the Supreme Court of Korea found such special circumstances, the Constitutional Court could not. Further, the Constitutional Court found limited unconstitutionality, which determinations the Constitutional Court contends that it has the authority to make and that such findings are binding on other courts and government agencies. The Supreme Court disagreed, declaring that such findings of limited unconstitutionality were beyond the scope of the Constitutional Court and thereby not binding on courts or government agencies. United States federal tax law is prescribed through federal statute enacted by Congress, administrative regulations issued by the Internal Revenue Service, a bureau within the Executive Branch’s Department of Treasury, and case law advanced by federal courts at all levels including the specialized United States Tax Court. However, each of these sources derives its authority from the federal Constitution. The primary principle when interpreting revenue legislation requires an application of a plain meaning approach to the statute. However, that plain meaning approach must examine the law holistically, giving due meaning to each word, affording proper consideration to the law as a whole, and finally, with consideration of the surrounding body of law in which that statute is situated. This integrated approach to plain meaning itself will often produce disparate interpretations, and in the many instances when plain meaning is absent the varied auxiliary interpretative methods result in still more inconsistent perceptions. The United States’ lack of a specialized court for determining solely constitutional matters lends that such a conflict on point would not arise under U.S. law and given the U.S. Constitution’s provision in Article III, § 1 that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,” makes clear the federal judicial hierarchy in the American court system. Additionally, given the Ramseyer and Cordon Rules which require that any bill reported by Committee to the House or the Senate must include in the Committee Report or an accompanying document both the text of the statute or part thereof which is proposed to be repealed and a comparative print showing by appropriate typographical devices the omissions and insertions proposed, it would be difficult for a court to find a lack of legislative intent if such a document reflected the expected textual strikethroughs. With regard to statutory interpretation, however, U.S. law may prove to be more useful. In the Korean case, the Supreme Court based its finding of specials circumstances and “saving” of the earlier addendum on both legislative intent and lack of burden on affected taxpayers. While this evidence may fall flat when presented to Scalia, Thomas, or another textualist judge, it is clear that this “unexpressed legislative intent” has a secure place in U.S. jurisprudence. Indeed, the Korean case merely seeks to fill blatant gaps, a far more conservative objective than what several U.S. cases succeeded in achieving.

Judicial Supremacy: Explaining False Starts and Surprising Successes

Why has judicial supremacy emerged and endured in some places and not others? That the judiciary is the final arbitrator of constitutional matters is puzzling, as the judicial branch has neither the power of the purse nor direct access to military power. Indeed, although many of the world’s early constitutions betrayed the potential for judicial supremacy, it only took hold in a handful of polities. The United States, where judicial review became preeminent, is the example par excellence. We explain this variation by focusing on the process by which de jure power is originally negotiated and enforced. When judicial independence and judicial review are arrived upon as the solution to a coordination problem by multiple actors whose coercive power is diffuse, rather than imposed from above by a sovereign seeking to tie his hands, judicial supremacy obtains. We test this claim against the history of Magna Carta, U.S. Constitution, and several charters from Medieval Europe.

Thinning Out Structural Theory

In this article, I argue that we can construct a new kind of account of constitutional doctrine, in which courts implement a handful of abstract norms — for example: “states may not undermine the constitutional structure” — with different doctrinal devices depending on the practical problems of implementation in different contexts. The central insight is that if we look carefully, we can find patterns in the forests of convoluted constitutional doctrine. These patterns suggest deep and long-lived consensuses on certain fundamental constitutional requirements; and we can explain a great deal of constitutional doctrine with these basic consensus norms and jettison standard justifications that make many of these doctrines controversial. This is surprising, and runs against the conventional picture of constitutional theory and practice as dominated by battles between incommensurable theories of value or constitutional interpretation. This account is preferable to conventional views on criteria for selecting among competing theories developed in the philosophy of science: It is consistent with our best general theory of law, legal positivism; it can advance constitutional theory beyond the interpretive debates in which the research program often seems mired; and it is simpler, more capacious, and more fruitful for future research than conventional accounts. At a time when it seems that we are fundamentally divided on nearly every constitutional question, this approach can begin dispelling this appearance by providing an alternative to constitutional theory’s traditional focus on interpretive and value controversies and by countering the increasing politicization of constitutional questions with evidence that we actually agree on important constitutional matters.

The Forgotten Law of Lobbying

For most of American history, until the 1950s, courts treated paid lobbying as a civic wrong, not a protected First Amendment right. Lobbying was presumptively against public policy, and lobbying contracts were not enforced. Paid lobbying threatened the integrity of individuals, legislators, lobbyists, and the integrity of society as a whole. Some states had laws criminalizing lobbying; Georgia had an anti-lobbying provision in its Constitution. Inasmuch as there was a personal right to either petition the government, or share views with officers of the government, this right was not something one could sell—it was not, in the term used by one court, a “vendible”--a sellable item. Line-drawing between illegitimate paid lobbying and legitimate legal services was not easy, but in general courts enforced contracts where the thing being sold was expertise to be shared in a public forum, while refusing to enforce contracts where the thing being sold was personal influence to be shared in private meetings. During the mid-20th century, the practice of not enforcing lobbying contracts fell away. This change came from two things: the growing sanctity of contract, and the professionalization of the lobbying industry. State laws regulated lobbying instead of banning it. At the same time, as a constitutional matter, the law of lobbying occupied something of a no-mans land for many years—paid lobbying was neither explicitly protected by the First Amendment nor explicitly not protected. Supreme Court cases suggested, but did not hold, that paid lobbying was a First Amendment right. Only recently, and without much judicial discussion, has the legal-academic community presumed that there is a unique First Amendment right to pay someone to lobby, or be paid to lobby, grounded in the speech and/or petition clauses of the First Amendment. The scope of that right is unclear. This Article tells the history of the earlier approaches towards lobbying. It explores the lobbying cases of the 19th and early 20th century courts, looking at the logic underpinning them and how courts distinguished between illegitimate lobbying and legitimate hiring of professional lawyers. This Article is largely historical, but has doctrinal implications. First, it shows that as a matter of practice, there is no historical consensus on a First Amendment right to lobby. Second, the length and breadth of the treatment of lobbying as wrong--not a right--is indirect evidence that the First Amendment was not intended to protect paid lobbying. Third, the reasoning of the courts that invalidated lobbying contracts is still relevant to the degree of protection, and the kinds of activities that might be worthy of greater or lesser protection. 1/22/14 11:07 AM 1

James M. Buchanan’s contractarianism and modern liberalism

This paper contrasts Buchanan’s contractarian–constitutional liberalism with Hayek’s evolutionary liberalism and Rothbards free-market liberalism as representative branches of the classical liberal tradition. While Hayek and Rothbard focus on individual liberty as private autonomy, Buchanan posits that individual sovereignty should be recognized as the fundamental normative premise of liberalism. He insists that a consistent application of this premise requires liberals to respect individuals as sovereigns not only in their capacity as private law subjects but also at the constitutional level of choice where, as sovereign citizens, they choose, jointly with their fellow citizens, the rules under which they wish to live. It is argued that by supplementing the notion of individual liberty as private autonomy with the concept of individual sovereignty in constitutional matters Buchanan lays the theoretical foundation for complementing the well-developed liberal theory of the market with a consistent liberal theory of democracy.

The Law Connecting Presidential Power to Public Law

When political science developed in the United States in the 1880s, the study of politics incorporated public law. Upon its founding in 1903, the American Political Science Association linked the discipline of government studies to law. Presidential scholar Edward S. Corwin was regularly invited to testify before Congress on constitutional matters, as were other political scientists. By 1963, however, behavioral studies topped the list of fields in which significant work was being done. Located at the bottom was public law. Presidential scholars, giving little attention to legal and constitutional analysis, generally promoted broad trust in presidential power with few checks. That orientation has been rejected by a number of political scientists who remain committed to public law. Part of the political science discipline remains divorced from legal analysis.

Proposals for Constitutional reform in the part relating to the judiciary: The review of the national strategy

The National Strategy for the Reform of the Judiciary (2013 - 2018) is adopted in the National Assembly in June 2013. It is said that 'some commitments of this Strategy demand the revision of the Constitution'. The author analizes the part of the Strategy relating to the change of so-called constitutional framework of the judiciary. Among defined goals, which should be realized by 2018, he considers particularly disputable the prediction of the Judical Academy as a mandatory condition for the first election of judges and prosecutors. Without denying the importance of the Judicial Academy and the necessity of its reform, the author believes that the Academy should not be a constitutional category, just as the conditions for the election of judges and prosecutors are not a constitutional matter. On the other hand, the author advocates a return of the basis for the termination of judicial and prosecutorial functions, as well as the reasons for their dismissal, into the Constitution which are currently in the law.

'Rawls'' Public Reason Reinterpreted: Construction, Reconstruction, and Overlapping Consensus of a Political Conception of Justicee

Public reason is an important concept in Rawls’ political liberalism. As Rawls puts it, ‘it is the reason of the public and its subject is the public good concerning questions of fundamental political justice, which deals with constitutional essentials and matters of basic justice.’ He further explains that ‘the content of public reason is given by a family of political conceptions of justice’ and that ‘a citizen can engage in public reason when he or she deliberates within a framework of what he or she sincerely regards as the most reasonable political conception of justice.’ Rawls’ specification of public reason assumes that a political conception of justice is already given. He does not attempt to explain the role of public reason in the process of constructing a political conception of justice. Rawls is unclear on the distinction between the two roles of public reason, theoretical construction and practical interpretation. In my paper I shall argue that there should be two stages of public reason, theoretical construction and practical interpretation of a political conception of justice. In the theoretical stage, public reason is to construct a political conception of justice, with the help of two moral powers, the capacity for a conception of the good and the capacity for a sense of justice, within the condition of original position as the device of public representation. Through this stage a political conception of justice appears. And then in the practical stage, public reason gets its content from the political conception of justice that we obtained in the theoretical process. In this understanding, public reason is primarily independent from a political conception of justice and becomes the most fundamental capability for constructing a political conception of justice. Thus a political conception of justice is always theoretically challenged by public reason through cultivating new understanding and interpretation, that opens to reconstruction process, even if it has reached an overlapping consensus from the citizens divided by comprehensive doctrines as the source of nonpublic reasons in civil society.

Prva zakonodavna Skupština u Kneževini Srbiji i donošenje organskih zakona iz 1870. godine

The National Assembly of Serbia which was convened in Kragujevac in 1870 was of the great importance to the development of the parliamentary system in Serbia. For the first time in the legal history of Serbia as a state, the Assembly transformed from advisory to legislative body of the government. Despite not having the right to introduce any legislative initiatives, the Assembly passed the first laws which were passed by the national representatives elected to this body. This meant that parliamentary life in Serbia begun. Passing the set of laws in 1870, the regency additionally developed constitutional matters and in great measure filled a void made by the Constitution of 1869 which foresaw that those voids should be elaborated and supplemented by special laws. Voids in the Constitution and collapse of the regency were the main reasons for holding the first legislative Assembly session in Kragujevac in 1870. The laws relating to the governing bodies which were enacted at the Assembly in 1870, contributed to intensifying the political life in Serbia and it was emphasised some time later. Regular holding of the assembly elections had an impact on connecting political followers with their political leaders since the political prime candidates during the elections strived to make as firm and durable as possible relations with their voters. These laws confirmed that the Principality of Serbia renounced the Turkish Constitution of 1838 and that the regency came into force.

The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making

Scholars traditionally deduce the nature of judicial review (whether weak or strong) in a given country from the text of constitutional provisions (e.g., clause, incompatibility framework). They generally contrast the strong-form judicial review exercised under the U.S. model with weak-forms of judicial review exercised under the new Commonwealth model of constitutionalism. This article argues, however, that the strength of judicial review is mainly dictated by the method used for constitution-making. As such, it challenges conventional accounts of how models of constitutionalism come about and which systems should be classified as belonging to the new Commonwealth model of constitutionalism.This article further asserts that the process of constitution-making has practical implications for a country’s present and future constitutional development. It explores how the various theories ascribed to a country’s process of constitution-making lead to different resolutions of such fundamental issues as: (1) the implications of using notwithstanding language to overcome constitutional enactments; (2) the effectiveness of legislative self-entrenchment provisions; (3) the legitimacy of using referenda to decide constitutional matters; and (4) the unconstitutional constitutional doctrine. The article shows that the process used for adoption and amendment of a constitution defines the nature of constitutionalism in a given country more than any text included in the constitution itself.

Deliberation and Civic Studies

Deliberation and Civic Studies

Generalising the Principle of Complementarity: Framing International Judicial Authority

International courts exercise public authority. Their decisions affect individual and collective self-determination. Nowadays, international courts decide on criminal, constitutional and administrative matters, much in the same way as domestic courts. Possible tensions between international and domestic courts raise the question of how to frame international judicial authority vis-à-vis domestic courts in a way that contributes to the legitimacy of their decisions. To respond to these concerns, the article analyses the potential of a generalised principle of complementarity. The principle's underlying idea can be rooted back to several procedural and substantive manifestations of it in human rights courts and in international investment tribunals. It regulates the relationship between international and domestic courts in order to ensure individual legal protection and the balance of individual and collective interests. In accordance with the rationale of the Rome Statute, domestic courts are primary responsible in this regard; and only when they are unable or unwilling may international courts compensate domestic institutional deficiencies, safeguard subjective rights, ensure compliance with international law standards and strengthen domestic capacities. The function of the principle is twofold: (i) to structure the relationship between international and domestic courts—a relationship that is characterised by a division of labour, cooperation and mutual responsibility; and (ii) to normatively guide and evaluate the jurisprudence of international courts. In fulfilling these functions, the legitimating potential of complementarity can best be unfolded.

Do constitutions matter? Evidence from a natural experiment at the municipality level

This paper asks if it does matter for taxes and government spending whether the mayor is elected (and recalled) by direct election or by the municipal council. It thus contributes to the economic literature on the impact of constitutions on economic outcomes. The effects are identified based on reforms of the municipal constitutions that were exogenous from the point of view of the municipalities in content and timing: each year, quasi-randomly selected groups of municipalities introduced the new constitution. This setup helps overcome endogeneity and identification issues that are common to many studies in the field using country level data. Using a new panel dataset of the 686 municipalities in three German states, this paper shows that direct mayoral election and recall through referendum only (as opposed to election and recall through the municipal council) reduce tax rates and increases spending on government employees.

The Constitution Goes Public: Politics and the Ratification Debate

The Constitution Goes Public: Politics and the Ratification Debate Todd Estes (bio) Jürgen Heideking. The Constitution before the Judgment Seat: The Prehistory and Ratification of the American Constitution, 1787–1791. Ed. John P. Kaminski and Richard Leffler. Charlottesville: University of Virginia Press, 2012. xxviii + 552 pp. Notes, bibliography, and index. $45.00. This is a propitious time to be studying the U.S. Constitution and its ratification. The invaluable Documentary History of the Ratification of the Constitution, an ongoing, multivolume project based at the University of Wisconsin, makes available to scholars nearly everything published or written, publicly or privately, pertaining to ratification. Pauline Maier’s impressive study, Ratification: The People Debate the Constitution (2010), which draws heavily on the Documentary History, provides a solid analytical narrative of the process of ratification focusing on the state conventions. Still other works—some recently published, others in progress—address related constitutional matters and offer additional perspectives. And now comes this book, originally published in German in 1988, its content only partially available until now, and its publication long anticipated by students of the Founding.1 These newer works are welcome because the ratification debate, despite its significance, has had a spotty and frustrating historiographical record. Robert Rutland’s The Ordeal of the Constitution (1966; rev. ed. 1983) was uneven, extremely quirky and impressionistic, largely undocumented, and it focused mostly on the anti-Federalists. Some of the best work came in a pair of edited collections on ratification in the individual states that appeared around the time of the bicentennial of the Constitution. Both collections contained able treatments but neither offered a larger interpretive overview of ratification. Various articles and dissertations, the fugitive chapter or two in random collections, and some review essays all made contributions here and there, but there was still no comprehensive treatment of ratification until the fortuitous appearance of Maier’s book and of this volume.2 The story of this book’s publication history is marked by both persistence and tragedy. The original work was published in German in 1988 after the author had spent considerable time in Madison in regular contact with the [End Page 213] Documentary History editors, who included John P. Kaminski and Richard Leffler. Following German publication, Heideking again worked with Kaminski and Leffler to revise the work and sought grants to publish in English, originally with Madison House, then Rowman and Littlefield. But, tragically, Heideking was killed in an automobile accident in 2000, and the project stalled until Kaminski and Leffler stepped back in as editors and helped secure funding and then publication from the University of Virginia Press. Heideking’s original efforts, and subsequently those of his Wisconsin friends after his death, have now paid off in this significant work. With a grasp of the history that is impressive and sure-handed, Heideking locates the debate over the Constitution against the broad sweep of early America from the Revolution through the early republic and is also alert to the place of U.S. history in the grand scheme of world history. His account of ratification connects the debate back in time to the Revolution and then traces its story past ratification into the celebratory festivals of 1788, the first congressional elections, and the debates over amendments. This book makes a number of specific, contextualized arguments about various aspects of ratification rather than pushing a single overarching thesis. But if there is a larger argument to the work, it is that Heideking casts the Federalists as “the revolutionaries of 1787–88 . . . [who] knew they would have to break with all established modes of thought and political language to succeed” (p. 134). But theirs was a revolution ironically intended (almost conservatively) “to achieve stability, order, security, and predictability” (p. 134). The anti-Federalists, in contrast, were still fastened to an older world-view and were anxious rather than hopeful about change. To their minds, Heideking writes, “America was on the verge of imitating all the mistakes already endured by Europeans” (p. 133), and this drove their opposition to the document. Rather than being a social or a class struggle, ratification “was more a clash between two distinct attitudes, mentalities, and political cultures shaped by...

The Lords' Prayer - Thy Will Be Done in the Commons

The duty of the House of Lords includes ensuring that legislation proposed by the Commons reflects the will of the British people, particularly on constitutional matters. The Lords’ role of constitutional guardian and their veto power are defined as well as justified by their non-elected status; they should not, therefore, be granted a democratic characteristic. The author submits that what undermines the Lords’ legitimacy to participate in the legislative process is their partisan status, safe for the crossbenchers and bishops. It will be observed that political parties have used the Upper Chamber as a vehicle of their political agenda for centuries, whereas the Lords’ role of constitutional guardian requires that they protect the people from the potentially arbitrary decisions taken in the Commons. Hence, it is the author’s submission that as political parties reflect on proposals for a more acceptable reform of the House of Lords, they should envisage the gradual replacement of its current members with non-partisan ones.