Constitutional Ideas Research Articles

O CONSTITUCIONALISMO ATRAVÉS DO CONFLITO – UMA REFLEXÃO E ALGUNS COMENTÁRIOS EM TORNO DA IDEIA DE CONSTITUIÇÃO RADICAL

Este artigo pretende discutir e desenvolver alguns pontos referentes à ideia de Constituição radical, apresentada pela professora Vera Karam de Chueiri em seu artigo Constituição radical: uma ideia e uma prática. Com o auxílio de alguns conceitos extraídos da obra de Jacques Rancière, destacamos como o referido conceito de Constituição poderia assimilar conflitos políticos sem comprometer as conquistas consolidadas pelos vários movimentos sociais e os direitos das minorias políticas. Discutimos, ao final, como a ideia de Constituição radical poderia ser frutífera para o pensamento da interdependência complexa e tensa entre constitucionalismo e democracia, que também se mostra crucial para o trabalho de Vera Karam.

The struggle for the Eurasian borderlands: from the rise of early modern empires to the end of the First World War

This book explores the Eurasian borderlands as contested 'shatter zones' which have generated some of the world's most significant conflicts. Analyzing the struggles of Habsburg, Russian, Ottoman, Iranian and Qing empires, Alfred J. Rieber surveys the period from the rise of the great multicultural, conquest empires in the late medieval/early modern period to their collapse in the early twentieth century. He charts how these empires expanded along moving, military frontiers, competing with one another in war, diplomacy and cultural practices, while the subjugated peoples of the borderlands strove to maintain their cultures and to defend their autonomy. The gradual and fragmentary adaptation of Western constitutional ideas, military reforms, cultural practices and economic penetration began to undermine these ruling ideologies and institutions, leading to the collapse of all five empires in revolution and war within little more than a decade between 1911 and 1923.

Monism: A Tale of the Undead

Exploring the relationship between domestic law and international law had been a hobbyhorse of German and French public law scholarship well into the early twentieth century. The relevant debates revolved around two major positions: “dualism”, on the one hand, and “monism”, on the other.With international co-operation becoming at least moderately successful in the wake of the Second World War, these debates were no longer continued. They came to be regarded as intellectual relics stemming from a different age. Often with little accuracy, they were presented in the introductory chapters of textbooks, based on an understanding that they concern mere constructive matters. They were taken to be irrelevant to the progress of humanity that was to be advanced by international law. Quite remarkably, the themes relevant to the old debate have been resuscitated in discourses dealing with final authority in the European Union. The themes have become mingled with discussions of federalism and are now presented, without further ado, as issues possessing a constitutional significance. Hence, traditional disputes are recast in a manner that appears to affect, in one way or another, the “constitutionalisation” of the Union. As is well known, the European constitutionalisation farrago has in the meanwhile spilled over into general international law. Remarkably, the constructive questions revert to their original intellectual habitat, even if in the new cloth of ideas concerning the purported constitution of international law.As is often the case in intellectual history, when prior debates are almost forgotten the reformulation of older ideas comes dressed up in new vocabulary. What has emerged from the constitutional context of Union Law and begun to reach out into general international law are (relatively) new kids on the block, namely, “pluralism” and “cosmopolitanism”. Adorned with constitutional pathos they are advanced as alternatives to the trite dualist and the long abandoned monist paradigm. The article argues, first, that pluralism and cosmopolitanism do not really offer any alternatives. Making sense of the relevant positions requires translating them into the conceptual world of the received debate. If defensible, pluralism, either in simple or cosmopolitan form, formulates a new version of monism; if not, it amounts to a travesty of constitutional ideas, which assimilates legality to the mindset of administrative action. Moreover, it is argued below – in a spirit somewhat reminiscent of Kelsen – that choosing one construction over the other is a question of political philosophy. Monism commends itself not least owing to its superb constitutionalist sensibilities.

The Political Thought of Mirzā Aqā Khān Kermāni, The Father of Persian National Liberalism

The second half of the nineteenth century is one of the most important periods for the evolution of political thought in Persia. Notable intellectuals started to develop a critical perception of the social, economic and political issues, giving life to a new current of thought which became known as the constitutionalist movement of Iran. Mirzā Aqā Khān Kermāni (1853-1896) is one of the most important thinkers of this time who, in numerous books and articles, puts forward constitutionalist and nationalist ideas for the first time in Iranian contemporary history. This article will examine his political thought, highlighting how Kermāni, after being in contact with the liberal and constitutional ideas of western thinkers and also after a new revision of his own Persian history and philosophy, was able to work out a new way of thinking which contributed to creating the ideological basis for a modern concept of Nationalism in Iran and for the first attempt at secularization of Iranian society. This article shows how the Iranian constitutional revolution of 1906 (mashrūṭeh) was in fact partially the fruit of ideas of this first generation of secular thinkers such as Kermāni, who were able to spread a new civil concept of the state which separated religion from politics, by introducing the rule of law and limiting the absolute power of the monarch.

DIÁLOGOS ENTRE CONSTITUIÇÃO E DIREITO INTERNACIONAL: INTRODUÇÃO A TEORIA DA TEIA CONSTITUCIONAL / DIALOGUE BETWEEN CONSTITUTION AND INTERNATIONAL LAW: INTRODUCTION TO THE CONSTITUTIONAL WEB THEORY

This article is a product of the author's initial attempt to develop a theory trying to describethe insertion of the idea of Constitution in the international Environment. The main ideais that the relationship between Constitution and International Law is, in fact, arelationship between pluralities, plurality marked between the interaction of differentnational order (Constitutions) between themselves and the common goal in obtain abroader Law, the International Law. Therefore, the latter having an obligatorycosmopolitan spirit, commonly absent in the national Laws under a Constitution. In theauthor minds, this situation can be described as being like a “spider web”, whose “spider”that spins the web is the Conflict of Law (or Private International Law). In other words,this “web spinning” is where we can find the dialogue between Constitution (NationalLaw) and International Law. Therefore, the understanding of this “web spinning” processonly can be achieve when considering not only the Law of Treatises (Public InternationalLaw), but also the rules of the Conflict of Law, when analyzing the relation betweenConstitution and International Law.

The Three Schools of CCO Thinking

The idea of the communicative constitution of organizations (CCO) has gained considerable attention in organizational communication studies. This rather heterogeneous theoretical endeavor is driven by three main schools of thought: the Montreal School of Organizational Communication, the Four-Flows Model (based on Giddens’s Structuration Theory), and Luhmann’s Theory of Social Systems. In this article, we let proponents of all three schools directly speak to each other in form of an interactive dialogue that is structured around guiding questions addressing the epistemological, ontological, and methodological dimension of CCO as a theoretical paradigm. Based on this dialogue, we systematically compare the three schools of CCO thinking and identify common grounds as well as key differences.

Lessons from Constitutional Culture and the History of Constitutional Transfer: A Hope for Constitutionally Limited Government?

The literature shows a clear correlation between sound constitutional environments and human flourishing. However, the path to adoption of sound constitutions is much less clear. This paper turns to the history of constitutional transfer to propose an alternative to taxonomies offered in the literature, which typically classify constitutions either by governmental structure (presidential v. parliamentary, or centralized v. federalist) or by source of influence (e.g. US 1787, Spain 1812, France 1958). These classifications are found wanting; instead, this paper proposes a new taxonomy based on the origin of the constitutional ideas and adoption. Formal constitutional parchment must match informal constitutional culture, so a constitution’s likelihood of success is greatest when the ideas are indigenous; the source of adoption is ultimately secondary. The paper closes with four case studies of constitutional transfer and adoption.

Political Theory in Institutional Context: The Case of Patriot Royalism

AbstractIn the aftermath of the Stamp Act, prominent American thinkers of otherwise unquestioned Whiggish affiliation adopted an expansive view of the king’s prerogative powers while simultaneously denying Parliament’s authority to interfere in the internal governance of the colonies. Scholars have generally attributed this stance, known as “patriot royalism,” to political necessity: with no other means of disputing Parliament’s oppressive actions, desperate pamphleteers sought to revive the discredited constitutional ideas of the Stuarts. In contrast, we argue that this position was deeply rooted in the institutional context of colonial governance. More specifically, we show that revolutionary Americans directly experienced lawmaking by Privy Council and the Board of Trade over which, as a practical matter, there was no higher authority. This “conciliar” form of governance, which survived the break with England, exerted a significant influence on the constitutional framers and their handiwork.

Rethinking Presidential Studies through Historical Research

When George Edwards first proposed that we put together a special issue of Presidential Studies Quarterly to feature research, we were skeptical. We are of an age when the appearance of scholars raising the flag, rallying the troops, drawing lines, or claiming turf seems tiresome, and in this case, we thought the risk of backfire was especially high. For one thing, no group of scholars has exclusive claim to the study of presidential history. History is the common reservoir of material used by all, and since there is no escaping history in presidential studies, it is hard to cordon off a historical from any other. By the same token, there are large and significant differences of approach even among the scholars who do delve deeply into the past to gain traction on this subject. The two of us use history very differently, and it can hardly be said that we cover the range of tastes and perspectives. No tidy compilation will. Any selection is inevitably a partial representation, and likely for that reason to foment more dissension than solidarity among those who otherwise share a broad interest in considering the long duree and thinking about the patterns of change over time. Nonetheless, we were curious. The key decision to come out of our early discussion of George's proposal was to look to political scientists only now coming up through the ranks, scholars whose recently published work had made new inroads into understanding of the presidency. We sent out feelers asking a number of them if they had any new projects that might speak to the uses of history in presidential studies or any programmatic ideas to convey how insights bear on what is going on in other precincts of the field. The responses encouraged us to think about this special issue less as a collective statement about the agenda than as a survey of possibilities from a group of scholars likely to play a prominent role in shaping the future of the field. Reading through the articles, one quickly sees that they are not all of a piece. They do not all engage the literature in the rest of field in the same way: some use history to complicate and question common assumptions in the larger literature; others use history to deepen familiar themes and to redirect the research that elaborates upon them. Differences among the articles extend even to the interpretation of particular figures, drawing somewhat different lessons, for example, from James Madison's use of war powers. But all these articles are attuned to the larger field of which they are a part, to the fact that everyone in presidential studies is relying on history in one way or another, and to the potential of research to pry open the research agenda. None look to history as a reservoir of examples to confirm the conventional wisdom; all find leverage in history for rethinking it. The six contributors delve into different periods and pursue different issues to leverage new insights about the presidency. Benjamin Kleinerman highlights the importance of a president's constitutional ideas. He suggests that the Constitution has been perceived by presidents not as a set of conventional rules within which to play for power and accomplishment but as a fluid framework that can be shaped by personal conceptions of proper conduct. Kleinerman's subject is America's preeminent constitutionalist, James Madison. Becoming convinced during the Federalist era that the greatest threat to the Constitution was not the legislature but the executive, especially in its incentives for and powers of war making, Madison approached the war of 1812 differently than modern understandings of presidential power would recommend. Though often criticized as an unassertive and feckless commander in chief, Madison was, Kleinerman argues, deliberately attempting to establish a model of presidential restraint, demonstrating through his conduct how a president might lead a nation at war without doing violence to the values of republican constitutionalism. …

Lawyer, Lawyer: Albert Venn Dicey, Joe Ma, and the Rule of Law in Hong Kong

Joe Ma’s Lawyer, Lawyer, a film about a lawyer’s attempt to rescue his former servant from a false accusation of murder in the colonial courts of Hong Kong, was released in 1997, the pivotal year of Hong Kong’s retrocession to China and a time when anxieties about the rule of law were very much in the air. A quintessentially ‘Hong Kong’ movie, it casts the comedian Stephen Chau – one of the most iconic figures in Hong Kong cinema – as the lawyer. The film’s box-office success can to a great extent be traced to its clever use of puns and conventions in Cantonese, the dialect spoken in Hong Kong. Moreover, as a film with a specifically legal focus, it resonated with audiences by raising relevant questions about the legal construction of Hong Kong identity, the place of English law in a former colony, and the future of the rule of law in the city after its return to China. This article attempts to establish a dialogue between law and film by arguing that Lawyer Lawyer can be understood as a post-colonial critique of the notion of the rule of law. It will take the work of the English jurist Albert Venn Dicey as its focus, for Dicey’s seminal writings on the English constitution is widely regarded as the key to the popularisation of the term ‘rule of law’ in the common law world. This article therefore builds on the existing literature on ‘law and film’ studies, especially works on the relationship between legal theory and film studies, and extends their frame of analysis to the ways in which the genre of film responds to the dissemination of English constitutional ideas to former colonies in East Asia.

Rev. John N. Schumacher SJ, 1927–2014

Rev. John N. Schumacher SJ, 1927–2014 Reynaldo C. Ileto, Vicente L. Rafael, Coeli Barry, Francis A. Gealogo Chair, Maricor M. Baytion, and Filomeno V Aguilar Jr Fr. John N. Schumacher SJ died on 14 May 2014, thirty-four days short of his 87th birthday. Born in Buffalo, New York, on 17 June 1927, Father Schumacher entered the Society of Jesus on 30 July 1944, arriving in the Philippines four years later to undertake philosophical studies at the Sacred Heart Novitiate. From 1951 to 1954 he taught English and Latin and served as Prefect of Discipline at the Sacred Heart Novitiate. He returned to the United States to pursue Theology at Woodstock College. He was ordained to the priesthood on 22 June 1957. Fascinated by Rizal, he went on to pursue a doctorate at Georgetown University. He returned to the Philippines in 1964 and became part of the pioneer faculty of the Loyola House of Studies, which would become the Loyola School of Theology, where he devoted over forty years to impart church history to generations of Jesuits, seminarians, and students. Father Jack, as he was known, took his oath as a Filipino citizen in 1977. In 1998, on the centenary of Philippine independence, he received the Ateneo de Manila University’s Gawad Tanglaw ng Lahi. [End Page 297] Click for larger view View full resolution [End Page 298] The demise of Fr. John N. Schumacher SJ marks the passing of a generation of postwar Filipino historians who established the contours of a new national history anchored in the events of the revolution. Teodoro Agoncillo fired the first salvo in 1956 with Revolt of the Masses, followed by Malolos (1960). Cesar Majul followed with Political and Constitutional Ideas of the Philippine Revolution (1957) and two books about Apolinario Mabini (1960 Apolinario Mabini (1964). By 1970 the radical, Marxist-inspired readings of the revolution, which had been brewing for the past two decades, were brought together and popularized in Renato Constantino’s A Past Revisited. At this point, Schumacher joined the fray with a book on the Propaganda Movement (1972). But his decisive intervention in the field of Philippine Revolution studies would come in 1981 with his monumental Revolutionary Clergy: The Filipino Clergy and the Nationalist Movement, 1850–1903. The Agoncillo, Majul, and Constantino histories are not dissimilar in displaying the cumulative results of the nationalist challenge to the colonial and clerical histories that had dominated up to the 1950s. One notices in them, for example, a conscious marginalization of the role of Catholic priests and popular religiosity in the struggle against colonial rule. While the former are ignored, signs of the latter are mocked as “superstitious mumbo jumbo”—to quote Constantino. The overall effect is that of making the “secular” Filipino style of revolutionary struggle unique in Southeast Asia, where Buddhist pongyi and Muslim ulama provided leadership in anticolonial movements. Revolutionary Clergy realigned the Philippines with the rest of the region. Surely, writes Schumacher, the majority of Filipinos did not, with the revolution and the republic, simply abandon their loyalty to the Church of Rome. With the imprisonment and departure of the majority of friars during the Katipunan uprising and the republican period, Filipino priests rapidly filled the vacuum. To Schumacher, it was this element that truly represented the sentiments of the masses. The ups and downs of the republic, the guerrilla struggle, and the accommodation to the United States could be traced to what these priests were thinking and doing, and their relationship to the revolutionary and colonial regimes. Contrary to Agoncillo’s widely accepted view that antifriar sentiment was the underlying cause of the popular unrest in 1896, for Schumacher “the mass of ordinary people were grieved by the loss of their friar parish priests” and “were repelled, even horrified, at the idea of the friars being held [End Page 299] prisoners.” The republican government was rent apart, he insisted, by struggles between the anticlericals and “devout Catholics,” and not between the “haves and have nots,” as Agoncillo would have it. Despite their differences, however, both historians agreed that the main social contradiction in the revolution was between the super rich, educated, urban dwelling, weak-kneed ilustrados, and...

Constituição e poder reformador: elementos para um debate promissório

The actual social and political moment shows the centrality of the Constitution. The constitutional text must be adapted to answer social demands. In this sense, this article has, first of all, the objective to think about the legitimacy of the reforming power in contemporary Brazil. Secondly, to fulfill with this aim, it will be done an investigation over the sense and the idea of Constitution,

Constructed Functionalism: A Revisionist Framework for the Functional Analysis of Courts

Courts are widely acknowledged to play an important role in constitutional systems, yet a unified, precise, and self-conscious theoretical framework for the functional analysis of judicial institutions remains lacking. In this light, the purpose of this paper is to propose a revisionist functional approach, which I term constructed functionalism, that draws heavily from, and modifies significantly, structural functionalist theory via the selective use of rational choice theory and more recent scholarship in public law and comparative legal institutions. Via structural functionalism courts are characterized as serving both a particularistic manifest function (triadic dispute resolution) and a systemic latent function (the promotion of the health of the constitutional system). Yet unlike structural functionalist analysis, the latent function is not seen as natural or given, but is rather modeled as politically constructed by judges embracing widely varying constitutional ideologies and subsequently deriving from them equally divergent blueprints of how best to promote constitutional-systemic health. Thus while judges are portrayed as (self-consciously) Durkheimian figures, a traditional structural functionalist interpretation of the constitutional system and its interaction with society is rejected. Rational choice theory is incorporated to explain how judges pursue their latent function – strategically and subject to exogenous political and institutional constraints. Finally, from recent scholarship on popular constitutionalism, the judicially constructed latent function is characterized as open to contestation by non-judicial actors, revealing the disharmonies endogenous to constitutional law. Such conflict inherent to the law arises precisely because judges are seldom able to monopolize the marketplace of constitutional ideas and can also misdiagnose systemic needs. Due to space constraints, the use of empirical examples is limited to providing illustrations of the framework’s components via brief case studies of noteworthy US Supreme Court cases.

A gender critique of liberal feminism and its impact on Nigerian law

Any critique of Nigerian law must recognise that it is derived from several principles which do not accord equal weight to questions of rights. There are the common law principles which constitute the bulk of Nigerian law. Interwoven with these are concepts of customary or native law which incorporate Islamic principles and practices as part of the custom of the people. There are also emerging ideas of constitutionalism against which all of Nigerian law must be assessed. Feminist critiques of Nigerian law have invariably focused attention on the vestiges of customary law precepts in such areas as inheritance, women’s rights and widowhood rights. In several cases, Nigerian courts have declared that particular customs cannot stand in view of the position on equality expressed in the Constitution. But feminist arguments go beyond questions of marginalisation in problems of inheritance and address the same issues that one encounters in critiques by Western feminists. The need to be part of the global feminist discourse is emphasised while remaining conscious of the specific Nigerian issues which have arisen.

Transconstitucionalismo: Do acoplamento estrutural à racionalidade transversal

A ideia de transconstitucionalismo representa um marco nas propostas inovadoras dentro da seara do Direito Constitucional. Trata-se de uma perspectiva que busca demonstrar como no contexto da “sociedade mundial” (Weltgesellschaft) se desenvolvem novos mecanismos de troca de experiências constitucionais nos âmbitos local, nacional, regional e internacional. Além disso, o modelo do transconstitucionalismo rompe com o famoso e desgastado debate entre monistas e pluralistas no Direito Internacional. A proposta do autor quer superar a ideia luhmanniana de constituição como acoplamento estrutural a fim de permitir uma explicação mais adequada para as novas situações enfrentadas na modernidade. Assim, se lança mão do conceito de “racionalidade transversal”, o qual seria mais capaz de dar conta da análise das condições do transconstitucionalismo. Entretanto, a proposta não está livre de limitações. Como o próprio criador da teoria observa, não se está livre dos obstáculos impostos pelas condições empíricas da sociedade mundial para a concretização do modelo proposto.

The 'Partisan Constitution' and the Corrosion of European Constitutional Culture

The paper examines the legal developments associated with new Hungarian Constitution, a text that, by entrenching the normative convictions and institutional solutions favored by a contingent political majority, gives rise to a distinct institutional setting: the ‘partisan constitution’. The analysis unfolds in three stages. Firstly, the new Hungarian Constitution is contrasted with the idea of pluralist constitution traditionally inspiring national European constitutions. Secondly, by investigating the reactions of European institutions to the approval and implementation of the partisan constitution, the difficulties in affirming EU values post enlargement are discussed. Finally, the Hungarian Constitution is assessed also in the light of the prevailing contemporary EU legal culture. It is argued that the Hungarian Constitution reproduces in amplified and grotesque form a more profound and pervasive phenomenon: the corrosion of European constitutional culture. Thus, rather than looking at it as a backward product and a contingent malaise, we should study and criticize it as the most emblematical example of a broader trend: the decline of the idea of pluralist constitution.

Constitutional Governance and the Future of Islamic Civilisation

The article advances the argument that Islamic law, more than a mere legal system, represents a legal tradition. A legal tradition stands at the heart of civilisations generally, and Islamic civilisation particularly. Constitutional design in Muslim states must have this backdrop in mind because modern constitutionalism is typically carried out within the framework of modern nation-states, instead of civilisations. The danger then is that the constitution may end up as a kind of “fiat constitution”. By excavating the historical and philosophical foundations of the modern constitution, the article then shows that the very idea of constitutionalism itself actually accommodates the idea of legal tradition, but unfortunately in practice, it is often ignored when designing the constitution of Muslim states. The article also identifies six core constitutional fault lines of contemporary Islamic civilisation, areas which are most vulnerable to conflicts.

Constitutional Governance and the Future of Islamic Civilisation

The article advances the argument that Islamic law, more than a mere legal system, represents a legal tradition. A legal tradition stands at the heart of civilisations generally, and Islamic civilisation particularly. Constitutional design in Muslim states must have this backdrop in mind because modern constitutionalism is typically carried out within the framework of modern nation-states, instead of civilisations. The danger then is that the constitution may end up as a kind of “fiat constitution”. By excavating the historical and philosophical foundations of the modern constitution, the article then shows that the very idea of constitutionalism itself actually accommodates the idea of legal tradition, but unfortunately in practice, it is often ignored when designing the constitution of Muslim states. The article also identifies six core constitutional fault lines of contemporary Islamic civilisation, areas which are most vulnerable to conflicts.

Constitutional Future of Europe

The 3rd millenium gives us the opportunity to construct activities on the field of the Constitution, giving that the level of constitutional development is achieved. The presentation of our futurological view of the Constituion will not be the product of imaginative assumptions, but the expectations we form based on the records of European constitutional experience so far. We certainly do not hide the fact that in our formulated standpoints the intuitive understandings of the future events in the constitutional field will also be included. At the same time, we are aware of the risks we take, because the primary standpoint we occupy is based on democratic development tendency in the field of the Constitution. Arguments in favor of that standpoint can be found in several unbiased facts which must be acknowledged, which provides the base of the acceptable scientific work with valid results. The forming of the constitutional reality of each individual country, considering all their specific qualities, is growingly under the influence of standardization established on the level of the European Union and the European rules outside the boundaries of European Union as well. It is obvious that we look at a complex constitutional puzzle formed by various parts, which does not stop us to present the existing and expected European Constitution (map consisting of individual constitutions of member states). For all these reasons, we are interested in recognizing the future development of the constitutionalism in Europe. It is therefore necessary to pay a special attention to the most vital, realistic and acceptable ideas about directions European constitutionalism should follow in the future. The unmeasurable and irreplaceable contribution which science can give, precisely consists of constructing and finding such ideas which can help main constitutional bodies to project new forms of constitution. In the great part of the article, the authors consider the idea of the European Constitution. DOI: 10.5901/ajis.2013.v2n9p124

Constitutional reengineering: Dialogue's migration from Canada to Australia

Foreign sources affect the development of constitutional systems in a variety of ways. In this article, I examine the intentional modification, or reengineering, of foreign constitutional ideas. The study of constitutional reengineering offers insights into how and why actors use foreign constitutional ideas and informs analysis of convergence and divergence among constitutional systems. To highlight the process and implications of constitutional reengineering, I analyze dialogue’s migration from Canada to Australia. Canadians develop the idea of dialogue to differentiate its Charter of Rights and Freedoms from the United States Bill of Rights, suggesting that the Charter facilitates unique forms of institutional interaction, or dialogue, between courts and legislatures on the meaning of rights. Australians appropriate and reengineer the idea, expanding dialogue to include the executive and public and reorienting it to differentiate Australia’s statutory form of rights protection from the status quo ante, namely a system of legislative supremacy. This study of reengineering complicates existing comparative analyses of rights protection in the Commonwealth, which suggest these rights instruments establish a middle ground between the paradigms of judicial and legislative supremacy. First, debates about dialogue in Australia and Canada underscore the difficulty in what it means to establish a middle ground in the context of rights protection. Second, Australia’s reengineered idea of dialogue emphasizes the importance of examining not only which institution gets the final say, the typical means of conceptualizing the middle ground, but also the dynamics of the law making process.