Fundamental Charter Research Articles

The European Human Rights Influence upon UK Extradition — Myth Debunked

There exists a perception within the UK that human rights law emanating from Europe acts to the detriment of extradition. This is not the case. This article describes the effect of the ECHR and Fundamental Charter of Human Rights upon UK extradition and concludes that in fact human rights play a relatively limited role.

Legal Conflicts and Subnational Constitutionalism

This paper analyses the increasing use of the concept of subnational identity, understood as a peculiar (to some extent) category that is opposed to the State or federal identity. References to it are included in the second-generation Italian (subnational) fundamental charters (Statuti) and Spanish Estatutos de autonomia. After an overview of the identity clauses contained in the sub-national constitutions, we will move to analyse the first cases of judicial relevance of these clauses when they are invoked before national courts, and test whether and how these subnational identity provisions could be interpreted in a manner consistent with the national constitution.

Speaking in Name of the Constituent Power: The Spanish Constitutional Court and the New Catalan Estatut

In June 2010 the Spanish Constitutional Court rendered a very important judgment on the constitutional legitimacy of the new fundamental charter (Estatut) of the Autonomous Community of Catalonia. Faced with a very long and ambitious legal document, the Court succeeded in not condemning as illegitimate most of its controversial provisions by means of interpretation consistent with the Constitution. Thus, those provisions aiming at ‘constitutionalizing’ Catalan identity have been widely neutralized or deprived of their legal significance. By doing so, however, the Court has attracted widespread criticism, possibly paving the way for further conflicts.

Lincoln and the Constitution: A Unionist for the Sake of Liberty

Lincoln and the Constitution: A Unionist for the Sake of Liberty LUCAS E. MOREL Ever true to Liberty, the Union, and the Constitution—true to Liberty, not selfishly, but upon principle—not for special classes ofmen, but for all men; true to the Union and the Constitution, as the best means to advance that liberty. Abraham Lincoln to a Committee of German Republicans, June 30, 18581 A perennial question regarding Lincoln’s understanding of the federal Constitution is whether preserving the American Union was more important to him than promoting liberty for all. Lincoln took up the question of lib­ erty when he addressed a sanitary fair (the Women’s Central Association of Relief) in Baltimore, Maryland, on April 18, 1864. He said, The world has never had a good def­ inition of the word liberty, and the American people, just now, are much in want ofone. We all declare for lib­ erty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his la­ bor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but in­ computable [sic] things, called by the same name—liberty. And it follows that each of the things is, by the re­ spective parties, called by two differ­ ent and incomputable names—liberty and tyranny.2 So what does it mean to be for liberty? For Southerners who rejected Lincoln as President and attempted to form a government separate from the American Union, liberty meant the right ofa slaveholder to deprive a black man of his freedom simply on the basis of race. Lin­ coln reminded Americans that this policy of whites doing just what they please with black slaves, “being responsible to God alone,” bore 214 JOURNAL OF SUPREME COURT HISTORY Lincoln’s nemesis, Illinois Senator Stephen A. Dou­ glas (pictured), proposed an alternative doctrine, called “popular sovereignty,” which made consent the prime directive and would simply “let the people decide” on the question of slavery in the territories. a “strong resemblance to the old argument for the ‘Divine right of Kings.’”3 “Freedom for me at the expense ofthee” does not sound like the proper application of the Declaration of Independence, but this was how slaveholders translated the fundamental charter of Ameri­ can liberty. This definition could only be found in what Lincoln called at Baltimore “the wolfs dictionary.” Needless to say, Lincoln rejected this definition of liberty. But he also rejected the definition of lib­ erty offered by many abolitionists. Folks like William Lloyd Garrison, publisher of the pre­ mier abolitionist newspaper in America, The Liberator, defined liberty as the equal posses­ sion of all human beings, regardless of race.4 So far, Lincoln would agree. However, Lincoln found their definition untenable as a practical matter because Garrison and his ilk dismissed the federal Constitution because it represented a union with slaveholders and therefore an unconscionable compromise with God’s en­ dowing all men with the same rights. In ad­ dition, so long as the national government could be enlisted in the protection ofslavery— through the notorious Fugitive Slave Law of 1850, for example—it was not a govern­ ment morally binding on any decent American citizen. Garrison’s rhetoric also created difficul­ ties for civic discussion and resolution re­ garding the future of slavery and freedom in America. In 1832, Garrison called the U.S. Constitution “the most bloody and heaven­ daring arrangement ever made by men” and “an unblushing and monstrous coalition to do evil that good might come.” In 1838, he helped establish the New England Non-Resistance Society, which proclaimed, “We cannot ac­ knowledge allegiance to any human govern­ ment.” In 1845, he said the United States “was conceived in sin, and brought forth in iniq­ uity.” In his most infamous formulation, Gar­ rison called the Constitution a “covenant with death” and an “agreement with hell,” and con­ cluded that it was “a mighty obstacle in the way...

The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order

The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order. By Gretchen Ritter. Stanford: Stanford University Press, 2006. 400p. 29.95 paper.Gretchen Ritter takes the American Constitution seriously. Like few others, she views the country's fundamental charter as announcing far more than a design for government institutions and a series of individual rights guarantees. The importance of the Constitution, she insists, extends deeper than can be captured by examining the text's most obvious features. It “creates and regulates a social order” (p. 8), a comprehensive understanding of public and private life. “The constitutional order acts as an instrument of social design,” claims Ritter; it endorses certain relationships over others, while also choosing to recognize certain members of the polity as privileged (p. 9). Traditional conceptions of the marital relationship or of the role of particular classes of people in the public realm, for example, are fostered and perpetuated by the constitutional scheme, not because the words of the text necessarily command it but because the nature of a constitution—an instrument that embraces a particular political and social order—makes it so.

Whatever Happened to Canadian Children's Equality Rights? A Reconsideration of the Eaton Special Education Case

This paper reconsiders the Canadian Supreme Court Decision in Eaton and examines its implications for the equality rights of Canadian children in general. The suggestion is made that a 'best interest of the child' standard cannot be met if it involves the violation of fundamental Charter rights. Segregated special education placement, when against the wishes of the parents or guardians and with no s. 1 justification, it is argued, is unconstitutional. The latter gives rise to violations of equality provisions with regard to the student's freedom of association, the right to personal autonomy in decision-making for parents in regards to their child's education, as well as, in some cases, security of the person insofar as the psychological, social and cognitive development of the disabled child is concerned. Such an exclusion from the mainstream, if imposed, it is suggested, does not generally meet the test for 'reasonableness' in accommodation consistent with Charter guarantees. The presumption in favor of...

Human Rights and Great Power Politics

In his famous essay, “On Perpetual Peace” (1795/1987), Kant argued that peace, freedom, and human progress were dependent on the existence of a plurality of politically competing units of independent states. In his 5th “preliminary article” he wrote: “No state may intervene violently in the constitution and the government of another state.” The concept of Human Rights applies, however — taking it literally according to our common understanding today — to all human beings irrespective of their national or cultural belonging, or their position in the hierarchical setting of the political world system. As social scientists we must investigate the different meanings and functions this complex idea assumes under the condition of a unipolar world order, dominated militarily and politically by one single hyperpower. This contribution investigates the universalist approach to Human Rights in political reality. It argues that the inherent universalism of Human Rights is used to instrumentalise them for strengthening the hegemonic relations of modernising strata within states and their populations both n Western and non-Western societies. That argument is by no means to be confounded with the apologetic arguments of some states (e.g., the PRC) that Human Rights are Western ideas and not applicable to non-western societies. Nevertheless, it asks for the roots of those purposeful misunderstandings. By its instrumentalisation, the concept of Human Rights may be damaged also for those suffering under its absence. Finally, this essay pleads for a policy of strict non-intervention in military terms to re-evaluate Human Rights and return their dignity as the fundamental charter of human-kind. Democratic transition needs to be protected against the very denial of democracy, which is forcing on other political units the prejudices of the more powerful states.

Providing for the Common Defense

This is not the best of times for the American military. With the Soviet threat gone, the armed forces, so recently the favorites of the Reagan administration, now find themselves searching for missions and trying justify their existence politicians and voters more worried about bloated budget deficits than foreign adversaries. Easily forgotten in this era of funding cuts, base closings, and reductions in force is the fact that one of the central concerns of those who framed the United States Constitution-as they stated in the preamble-was to provide for the common defense. Eleven of the eighteen paragraphs in Article I, section 8 serve at least in part empower Congress meet that responsibility. The United States Military under the Constitution of the United States, 1789-1989 provides a timely reminder that, despite the present emphasis of politicians and the public on promoting the general welfare and ensuring domestic tranquility, ours is in many respects a National Security Constitution.' While designed provide for the common defense, however, America's fundamental charter also creates a system that constrains military power. The generation that produced the Constitution feared standing armies, and no Framer would have agreed with the world's first great military theorist, Sun Tzu, that generals should be free from interference by the sovereign. A central theme in the constitutional history of the American military is the preservation of popular sovereignty over the power of the sword. Besides highlighting that theme, this collection of essays probes a number of other important issues related the conduct of warfare under the Constitution and the position of the armed forces in the American system of government. What Kohn and his collaborators do not do, unfortunately, is provide anything approaching a complete picture of how war and the military have affected constitutional development in the United States. That shortcoming of an otherwise excellent book is probably inherent in the genre which it belongs. A joint venture ... by the two principal societies of professional

Comparative Insights into Constitutional History: Canada, the Critical Years

When Her Majesty Queen Elizabeth II presented the Canada Act1 to the people of Canada, they alternately hailed the process as the patriation of the existing British North America Act (hereinafter Act) and the formation of a new Canadian Constitution. Actually it is both, because the Canada Act significantly modifies the BNA Act and very nearly establishes an entirely new constitutional order. The Canada Act will not slow the debate on the efficacy or efficiency of Canadian federalism, nor will concerns for protecting the language and cultural heritage of Quebec be diminished in the minds of the Parti Quebecois. The promulgation of the Canada Act, however, with its entrenched Charter of Rights and language guarantee, will significantly alter the terms of the debate about Canadian federalism and its French connection. Now the debate will take place under the aegis of a document which Canadians hope will be a real national constitution, that is, a constitution that embodies the legitimizing First Principle of national sovereignty. Canadians have had something they call a national constitution since the enactment of the BNA Act by the British Parliament in 1867. By American standards, however, the BNA Act was less than a constitution, because it was not a fundamental charter containing specific provisions that effectively defined the limits of the courts and legislatures with respect to human rights, nor did it embody the essence of national ideals and sovereignty. But to assume that Canada has not had a constitution for the past 115 years misunderstands the Canadian perception of constitutional process, for Canadians place great stock in British notions of constitutionalism.

The 25th Anniversary of the 1949 Geneva Conventions

August 12, 1949 was an important date in world history. It was on that day that the plenipotentiaries of some sixty States signed the fundamental charters of humanity which are known as the four Geneva Conventions, and which protect the victims of armed conflicts: the first, the military wounded and sick; the second, the victims of war at sea; the third, the prisoners of war; and the fourth—which was entirely new—civilians. After the suffering of the population in occupied countries during the Second World War, such a treaty appeared to be vitally necessary and urgent. As Max Huber said, the development towards total war has made danger and hardship equal for armies and population.