Framers Of Constitution Research Articles

Executives, Legislatures, and the Semantics of EU Public Law: A Pandemic-Inflected Perspective

This contribution will serve as the epilogue to a forthcoming volume on executive-legislative relations in the European Union (EU). It begins by noting that the EU’s response to the coronavirus pandemic, encouraging though it may be in some respects, has nonetheless reminded us of the constraints placed on a system of supranational governance that lacks a legislative fiscal capacity of its own. Although there is much excitement about the pandemic ‘recovery fund’ built on borrowing against the EU budget (and distributed, at least in part, through grants), the fund will still be ultimately backed by the fiscal capacities of the member states severally rather than by the EU’s own. Autonomous fiscal capacity, however, is arguably the core attribute of a genuinely ‘constitutional’ form of governance, and more specifically of a genuinely constitutional ‘legislature’. The EU’s persistent lack of a fiscal capacity of its own leads this epilogue to pose an admittedly radical question: Semantically speaking, is it right even to speak of the EU possessing ‘legislative’ power at all, at least in the most robust sense of the term, when it otherwise lacks autonomous fiscal capacity? This question might seem bizarre given key features of the EU’s institutional system, notably the existence of an elected assembly—the European Parliament (EP)—as well as that body’s participation in something called the ‘ordinary legislative procedure’ (OLP) in order to make rules of general and prospective application to govern European integration. According to the ‘as if’-constitutional framing that dominates most legal analysis of the EU today, the EP and OLP are so-labelled for a simple reason: they are the focal points of ‘legislative’ power in the European system. And yet, might this labelling be misleading? Might both the EP and OLP merely serve to inject an electoral component into a regulatory system that is fundamentally executive-technocratic (ie administrative) in character? Might specifically ‘legislative’ power in the EU—in the sense of the legitimate-compulsory mobilization of fiscal and human resources—still be concentrated entirely at the national level? With these questions in mind, this epilogue examines the many stimulating topics covered by the chapters in this volume: the application of Rodrik’s famous ‘political trilemma of the world economy’ to the EU context; the role of the EP in counter-balancing the powers of the Commission, Council, and European Council; the expansion of national executive power as a consequence of integration—the so-called ‘deparliamentarisation’ phenomenon—which operates to the obvious detriment of national parliaments (NPs); and finally the respective roles of the EP and NPs, as the case may be, in such areas as trade policy, the supranational regulation of national budgets, as well as several former 'second’ and ‘third pillar’ domains (security, defense, foreign policy, justice and home affairs). Based on this discussion, this epilogue concludes by reflecting on whether the last decade of upheaval in the EU—from the Eurozone crisis to the current pandemic emergency—has brought the EU to a ‘critical juncture’, in which some form of supranationalised fiscal capacity is now in the offing and which, if realised, might then allow the EU to transcend the current but misleading ‘as if’ constitutionalism that continues to characterise discussions of EU public law.

How to create and develop writing centres

This roundtable addresses how three Norwegian writing centres – in different stages of their establishment and settled within different constitutional frames – handle staff policy and aims to facilitate academic writing to their main users; students and PhD candidates.
 We will structure the discussion around four main themes that we juggle in our daily work: 
 
 Using strategic plans to promote academic writing development and student throughput
 Co-creating learning activities with and for MA students
 Keeping up with the Library and Faculty
 Strengthening and further developing academic writing in Higher Education
 
 Attendees at the roundtable will be invited to discuss and participate in a dialogue on the way in which writing centres can improve the students’ and PhD candidates’ writing process; why we find teaching and preaching academic writing to be an important skill, and how we can co-create learning activities in libraries and writing centres with academic staff and students. We will also discuss the issue of legitimacy, and what it takes to move writing centre activities from the periphery to the centre of the institution and its pedagogical mission. The audience will leave with ideas and inspirations on how to facilitate and build good writing centres in collaboration between staff, librarians and experienced students.

How does a social practice perspective add to the development of policy instruments to reduce consumption-based CO2 emissions? A case study of Austria

ABSTRACT While current policies aiming at a reduction of greenhouse gas emissions seem to be successful from the territorial perspective of industrialized countries, emissions are still increasing at the global level. The term weak carbon leakage describes a situation where an increase in consumption in developed countries leads to growing emissions in less developed countries. This effect is strongly related to phenomena like globalization and outsourcing of production. As a consequence, a large part of daily consumed products are imported and include embodied emissions (i.e. direct and indirect emissions that occur in the regions of production). For the development of effective policy instruments addressing consumption-based-emissions (CBE) embodied in these international products and processes, it is essential to apply a consumption-based approach (CBA), including both consumer-oriented policies, focusing on final demand, and producer-oriented policies, focusing on industry. Since a considerable share of consumption behaviour is performed by routines, habits and within social practices (cooking, working or shopping), CBE due to consumer behaviour are analysed in this paper by applying the social practices (SP) approach to the case of Austria. Based on this approach the development of effective policy instruments addressing a reduction of CBE by three types of interventions (re-crafting, substituting and interlocking) are discussed for the main hotspots of Austria’s CBE: construction and mobility. Key policy insights An SP perspective enriches the development of CBE policy instruments by shifting the focus of interventions from individual motivations (conscious consumption) towards the constitutional frame and the particular practice-setting which determines consumer behaviour. Consumption sectors such as construction and mobility are most often embedded in behavioural interlocking (e.g. commuting), calling for practical policy mixes to address this complex interplay of practices. The SP approach demonstrates that CBE can be addressed also by single instruments (e.g. changing a regulation, favouring the avoidance of certain practices or materials offered/used) only.

Second Amendment And The Gun-Control Controversies: A Flaw In Constitutional Framing And An Antinomy Of American Conservatism

Second Amendment And The Gun-Control Controversies: A Flaw In Constitutional Framing And An Antinomy Of American Conservatism

“People”, “Peoples” - How the May 3, 1791 Constitution framers defined what the People is and handled the duality of the Commonwealth of the Two Nations

AbstractIn the Commonwealth of the Two Nations, significant legal texts were implemented under the rule of King Stanislaw August, the most important being the Constitution of May 3, 1791, adopted during the Four-Year Sejm (1788-1792). Its framers faced numerous challenges, first, because then only nobles were considered as constituting the Republic, one was to define who should be considered as a member of the People, who could be elected deputy to the Sejm, and at which condition. Second, since the 1569 Union of Lublin the Commonwealth is made of two distinct states: Poland (the Crown) and the Grand-Duchy of Lithuania, drafters had to handle Lithuanian statehood in a Constitution, which was primarily seen as a way to enhance unification of the two nations. Third, the Grand-Duchy of Lithuania having its own legislation, enclosed in the Lithuanian statute, (adopted in 1529, followed with a Second Statute in 1566, and a Third Statute in 1588), the question of its maintaining or not too had to be taken into consideration by framers. We hope that considering how these different issues were handled will shed a new light on the permanence of Lithuanian laws and political tradition in the May 3 Constitution.

The Dominion model of transitional constitutionalism

Abstract This symposium has explored New Dominion constitutionalism inductively and contextually, placing the phenomenon within a historically nested set of ideas and practices from the Old (Settler) Dominions, through the “Bridge Dominion” of Ireland, before giving detailed attention to the South Asian New Dominions of India, Pakistan, and Ceylon (now Sri Lanka). The articles collectively form a basis from which to analyze the legal configuration of New Dominion status and its legacy by exploring links between New Dominion constitutional framing and post-independence design and practice. Building on the case studies, the principal contention of this summative contribution is that New Dominion constitutionalism should be understood as the first constitutional model of note designed to manage political transitions on a global scale. A product of the twilight of the British Empire, New Dominion constitutionalism represents a model for decolonizing nations and an important antecedent to later post-Cold War transitions. Both transitional and transnational, New Dominion status offered an interim frame of government for political transitions, the fuzzy center of which derived from Westminster-style conventions of political constitutionalism, as well as a template establishing the legal basis for constituting the fully independent state.

Article 137: Review of Judgments or Orders by the Supreme Court

When the Constitution was framed the substantive power to rectify or recall the order passed by the Supreme Court was specifically provided by Article 137 of the Constitution. The framers of Constitution who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution and clause (c) of Article 145 permitted the Supreme Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering the Supreme Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause, has been given an expanded meaning and a decree or order passed under misapprehension of the true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules, the Supreme Court has the inherent power to make such orders as may be necessary for the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice. The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.

Second Amendment and the Gun-Control Controversies: A Flaw in Constitutional Framing and an Antinomy of American Conservatism

Second Amendment and the Gun-Control Controversies: A Flaw in Constitutional Framing and an Antinomy of American Conservatism

How the Minnesota Senate Lost Its Stagger

The Minnesota Senate is one of only 11 state senates with four-year, unstaggered terms. As a result, no senate seats are on the ballot in two out of five general elections. That practice is contrary to the constitutional framers’ intent; they thought they were providing for staggered senate terms. For more than two decades after statehood senate terms were staggered. But in 1883, Attorney General W.J. Hahn issued an opinion that senate terms were not staggered under the constitution’s language. His opinion was occasioned by an 1877 constitutional amendment intended only to lengthen senate terms from two to four years when biennial legislative sessions were adopted. The Minnesota Supreme Court confirmed Hahn’s interpretation under unusual circumstances in 1948. This quirk of history – the result of poor drafting of the constitutional language and an aggressive use of the “plain language” rule of construction by Hahn – changed the Minnesota legislature. Aside from being contrary to the founders’ intent, it has affected both partisan control of the senate and how senators carry out their duties.This article details the history of how that came about and discusses the effects on the legislature.

Strengthening the Multi-Party Presidential Government in Indonesia

The Multi-Party Presidential Government in Indonesia has reached a critical point. The 2.5 percent parliamentary threshold rule in the 2009 Election was incapable to address the issue. The parliamentary threshold was raised to 3.5 percent in 2014, in the hope to reduce the number of party joining the election, but it failed to do so. There were 9 national parties participating in the 2009 election, and it will be increased to 16 in the 2019 election. Theoretically, the combination of multi-party parliament in a Presidential Government is rather strange. It is not surprising that the "conflict" between the president and parliament often occurs. There suppose to be a coalition supporting the government in parliament, but the coalition is not a firm one. The coalition did not have a significant influence in strengthening the presidential government. Therefore, this study intends to provide a complete picture of multi-party system practices while trying to provide solutions for strengthening the presidential government in Indonesia. To achieve this goal, this study uses the literature study method in collecting relevant information, using a qualitative approach. This approach is considered appropriate because multi-party phenomena and presidential systems are multidimensional. In contrast to previous research which was limited to the description and problems of multiparty systems, this research besides describing the system of government also provided moderate solutions that were considered to be in accordance with the Indonesian context. This study assumes that strengthening presidential systems can be done if the political parties are more modest. In addition, parliamentary support for the president must be optimized. The results of the study concluded that the strengthening of presidential systems must be carried out through the purification of the government system contained in the constitution, forming and strengthening the ranks of government coalitions in parliament, and carrying out a number of institutional engineering through various forms. These three things must be wrapped in a constitutional frame (amendments to the 1945 Constitution) and regulations (revisions to laws and government regulations). The amendments and revisions can be done through three corridors, namely the intra-parliamentary movement, the extra-parliamentary movement, and the referendum.

'Politics Are Rather a Form of War': How Partisan-Ideological Polarization Endangers American Constitutional Democracy

Recent legal and political science scholarship finally has turned to critical questions of democracy, vitality, and risks of backsliding or failure, and many have begun applying lessons from those literatures to an all-too-often ignored case: the modern United States. This paper extends several such works, tracing the historical development of structural design choices in the U.S. Constitution, the underlying philosophical debates of the framers, and peak eras of partisan polarization, explaining historical trajectories and present-day worries through a comparative politics lens. In so doing, the paper advances several arguments. One, models of risks to American democracy are alarming, but require extension and careful comparison. Two, the constitutional framers created long-lasting institutions, but they could not foresee the kinds of national polarizing issues which might undermine -- and have already compromised -- democracy systemically. Three, combining the legal and political science research traditions on American constitutionalism provides a guide for much-needed research on grave questions of resilience, especially given the modern extremity of partisan-ideological polarization. Four, the insights of comparative politics research on consolidation, in particular the empirical research on fragile democracies, should be applied to the United States -- a country, it merits repeating, which only recently attained true democratic status in the wake of the 1960s. Finally, this paper integrates the various literatures to argue for a systematic series of proposals to curb deteriorating norms and procedures in U.S. government. Risks to America's constitutional system have been gravely understated, and even the sharpest evaluations have ignored how initial institutional design choices and modern comparative examples of backsliding combine dangerously in 2019. The conclusions provided offer a few guides to ongoing, utterly timely research in these domains.

Jesus on Justice and Mercy in Constitutional Perspective

This essay places accounts of the mission of Jesus, including his politics, within a wider frame. It does so by offering a constitutional approach. This situates Jesus’ teaching of the kingdom of God in a Mediterranean context of ancient constitutional reflection, as also of certain Palestinian constitutional ideas and forms. An account of three main aspects of Jesus’ mission is offered within this wider, constitutional frame: first, power and authority; second, law and custom; and third, ethos and praxis. Jesus’ identity as an eschatological prophet of national renewal, whose aims are at least implicitly constitutional, comes to the fore.

The “Proper Organs” for Presidential Representation: A Fresh Look at the Budget and Accounting Act of 1921

Abstract:The presidency is now thought of as a representative institution. I argue that the idea of presidential representation, the claim that presidents represent the whole nation, influenced the political development of the institutional presidency. Specifically, I show that the idea was the assumption behind creating a national budget system in the United States. While the challenge of World War I debt prompted Congress to pass the Budget and Accounting Act of 1921, the law’s design owes much to reformers’ arguments that the president lacked institutional tools to fulfill his representative role. Congress institutionalized presidential representation in budgeting by including two key components: a formal license for presidential agenda setting in the budget process and an enhanced executive organizational capacity with the Bureau of the Budget. However, the law also revealed the problems raised by attempting to provide the “proper organs” for presidential representation, which push against the written constitutional frame.

James Madison, Justice Scalia, and Constitutional Interpretation

James Madison (1751–1836), so-called “Father of the Constitution,” held consistently throughout his long public career to a version of textualism regarding constitutional interpretation. It is surprising that for the author of the authoritative notes of the Federal Convention, Madison downplayed altogether the original intent of the constitutional Framers. From 1796 until his death Madison insisted that if constitutional meaning was to be searched for outside the text, the relevant sources to consult were ratifying conventions of the states, and “other public indications” at the time of ratification. In today's parlance Madison adopted a “fair-meaning textualism” method of constitutional interpretation and rejected the “original intent” jurisprudence favored by some modern-day commentators. This textualism appears to have been the method followed by the late Justice Antonin Scalia. Madison also believed in a living Constitution–one that had life and validity breathed into it by the ratifiers, and hence the people, not by its Framers.

THE LEGAL ASPECT OF THE NATIONAL EDUCATION BUDGET ALLOCATION

Education is part of the constitutional rights owned by the citizens and should be fulfilled by the State. Better proportion of educational budgetting will expand the access of education for the citizens. Article 31 Paragraph 4 of the 1945 Constitution explicitly states the number of 20 percent of the fulfillment of the education budget as a guarantee of citizens' educational rights. Nevertheless, the implementation of the aforementioned provision has been interpreted in various policies. This research answers the issue of law aspect regarding the implementation of educational budget allocation nationally. This is a doctrinal research with different approaches namely: statute, conceptual, and case. In this research, three important things are concluded: (1) The constitutional framers were lack of comprehend consideration in formulating provision related to educational budget. (2) The inconsistency of several principles such as the principle of Justice, Principle of Efficiency, Principle of Transparency, Principles of Public Accountability, and Principle of Effectiveness in the educational budget policy (3) Ineffectivity of administrative sanction since it has no significant effects to the substantial aspect of education equality and its improvement. The research offers several solutions (1) Constitutional amendment on the provision of educational budget allocation provided with reliable academic papers. (2) Designs effective supervision mechanism towards the local public budgeting (APBD) (3) Open the access for public participation.

General principles for the criminal prosecution of cybercrime: Spanish perspective

The reform of October introduced into the Spanish legal system an important renewal of the measures available by criminal investigators for the prosecution of crimes committed through information and communication technologies This study analyzes the general principles of this legislative innovation the constitutional frame that directly influences them and how they will be applied in some particular investigation measures It is noteworthy that the long established criteria developed by jurisprudence to make the restrictions of fundamental rights are admitted by the legislator in this reform including the need for close judicial control which should ever take into account in a brief time a careful consideration of the proportionality in the limitations provided by the new articles

The Madisonian Republic and Modern Nationalist Populism: Democracy and the Rule of Law

The U.S. Federal Constitution was built to be a machine for displacing conflict. Madison and the other Framers erected a Federal Republic organized to control populist movements and preserve the interests of the greatest stakeholders, while offering the “most liberty imaginable” in 1788. In 2016, a populist movement ascended to the commanding heights of power. How did it happen and what are the consequences when a faction comes to power? Is it a defect of the modern structure of American government? Has the U.S. Constitution reached a place where it is no longer functional? Or can Madison's Republic continue to work against popular factions rising in a common passion fired by fear and hatred? In tackling these questions, this article suggests that the U.S. Constitutional Framers did not know in 1788 what exiting the aristocratic and feudal world would mean and what kind of state and society the Republic would become. I argue Madison's contributions to The Federalist are exemplars of the engineer showing how each part of the machine fits together to achieve a comprehensive and effective whole. The national populism of the kind circulating around the Western world in 2016 has posed real challenges to that machinery.

Protestantismo y Masonería en la España contemporânea

Catholicism, deeply rooted in Spain until nowadays, made the heterodoxies that Protestants and Masons represented in modern times build bridges of collaboration among them, when the legal framework for freedoms allowed it, in their fight against the common enemy which was the Church of Rome. Studies observe that this was a fact, above all from 1868 until the beginning of the last civil war (1936) when there was a regime of tolerance and, promptly, religious freedom, within the constitutional frame. The close relationship between Masons and Protestants was seen in some common projects: in the commitment to an ideology of liberalism that was more progressive, democratic and even republican (supporters of religious freedom), the fight for a secular school or at least neutral in religious matters, outreach to the less favoured sectors of society, etc. However, concerning the number of Protestants framed in the ranks of Freemasonry, studies — still partial — show that the number was low possibly due to the also limited number of followers that had the different reformed churches in Spain.

Constitutionalization as Statecraft: Vagrant Nation and the Modern American State

This essay showcases the contribution of Risa Goluboff's Vagrant Nation (2016) to one field of scholarship that the book scarcely mentions: the historical literature on the American state. In Goluboff's account of the fall of the “vagrancy law regime” in the “long 1960s” I see vital questions about the nature of the modern American state and the endurance of older, seemingly antithetical modes of governance. Given the trends that state-focused scholars have illuminated—for example, toward centralization of power and the protection of individual rights—what allowed for vague, locally enforced vagrancy laws to survive so late into the twentieth century? What ultimately triggered their demise? In mining Vagrant Nation for answers, this essay also urges scholars to contemplate “constitutionalization” as a form of statecraft. In giving a constitutional law framing to the grievances of “vagrants,” federal courts reinforced key tenets of the modern American state, including the supremacy of national law over competing legal orders and the desirability of being a rights-bearing member of the nation-state. Simultaneously, these court decisions left open other, more “modern” possibilities for regulating the kinds of people (poor, nonwhite, unpopular) whom vagrancy laws once ensnared.

Poetic Justice: Rereading Plato’s Republic by Jill Frank

Reviewed by: Poetic Justice: Rereading Plato’s Republic by Jill Frank Susan B. Levin Jill Frank. Poetic Justice: Rereading Plato's Republic. Chicago: University of Chicago Press, 2017. pp. 228 Cloth, $90.99. According to Frank, Plato's dialogues offer divergent approaches to literacy: while one method is rigidly top-down, the other promotes learners' independence. She argues that Plato endorses the latter view and that this lens on becoming literate is also the one he favors for our acquisition of knowledge, as well as for ethics and politics. Dismissing the idea that Plato's thought developed (7n19), Frank moves without comment from the Republic to works usually deemed to belong to different phases of Plato's writing, both early (e.g. the Apology) and late (e.g. the Laws). Because Frank's approach is nondoctrinal, in no dialogue is its main character properly seen as Plato's "mouthpiece" (21, 27–28, 63, 119, 137–38). Per Frank, the dialogues are rightly viewed as dramas, with Plato consciously distributing his messages, direct and indirect, across each dialogue's characters. Further, not distinguishing between literary, or poetic, devices and poetry per se, Frank views the Republic as a work of "mimetic poetry" (80). Whatever one thinks of this overarching claim, not only does Frank argue persuasively that Plato's relation to poetry is more complex than is often recognized, but she makes intriguing, specific interpretive claims, for instance, that poets are ethically superior to those who establish Kallipolis (91). Though Frank also rejects "esotericism" (17), she evinces a quasi-esotericism when arguing that the Republic's official account, which repudiates "the difference, incommensurability, and plurality that are the conditions of [democratic] ethics and politics" (209), does not reflect Plato's actual, subtextual message to us. Overall, though, Frank's methodology seems closest to the aporetic (16, 27, 226), as she takes the dialogues' key merit to be Plato's posing of ethical and political queries to his audience whose pursuit, sparked by his writings, is necessarily open-ended. The concept of mimēsis undergirds Frank's argument that what is not made evident directly matters far more to Plato than what is expressly conveyed. Rejecting mimēsis qua "imitation" that aims to deceive (35–38, 66), Plato favors instead the meaning 'representation,' whose instantiations "provoke the desire to become good … by inviting attention to the appearance of those representations and … thereby to what does not appear, to possibility" (79). From this perspective, the Republic's presentation of early paideia, with the [End Page 748] dialogue's ensuing accounts of Kallipolis and virtue, "prompt[s] readers to be no less wary of the form of justice presented in Republic 2–5 than of the justice offered by Thrasymachus in Republic 1" (82). Routinely treating proffered accounts as self-undermining, Frank's Plato is distinctly postmodern, displaying an affinity, in particular, with deconstruction. Because "Plato's representations do not produce or reproduce reality … [they] depict failure on the part of Socrates' elite interlocutors … and also … on the part of the dialogues' philosophical authorities, including Socrates" (46). Plato's goal here is "to prompt mimetic disidentification that gives rise to critical reflection" (46–47); that is to say, Plato provokes us, his readers, to notice what his own characters do not. In principle, the Republic, Frank's focus, could have this function for contemporary readers independently of what Plato might have intended, but Frank insists that this is Plato's aim (12–13, 16, 137–38). In so doing, Frank veers into anachronism. She also gestures toward a liberal-democratic lens that is historically inapposite, claiming that Plato of the Republic favored a democratic constitutional frame because only it fosters "a practice of self-creation, transformation, exploration, and renewal that, as such, promotes capacities for self-authorization and self-constitution as well" (45). Since her approach is nondoctrinal, Frank need not discuss a plethora of what are widely viewed as Plato's doctrines. That said, her argument might be stronger if she directly addressed select topics. One notable omission is Plato's account of learning as recollection (anamnēsis). Salient epistemologically, memory becomes even more important given Frank's thesis that acquiring knowledge closely...