Ordinary Legislation Research Articles

A new typology of judicial review of legislation

AbstractThe distinction between strong and weak judicial review occupies a privileged place in comparative constitutional law. This article argues that it is necessary to generate a new typology that includes two other increasingly influential models. The two ‘new’ models can be identified as ‘strong basic structure review’ and ‘weak basic structure review’. The former, present in some common law countries such as India and Belize, not only provides judges with the ability to strike down legislation that is inconsistent with a particular constitutional provision, but also constitutional amendments incompatible with the principles on which the constitution rests. The latter model, weak basic structure review, currently present in some Latin American countries, also provides judges with the power to strike down ordinary and constitution-amending legislation, but gives ‘the people’, acting through a constituent assembly, the final word on the validity of any form of positive law. Finally, the article considers the possibility of the development of a fifth model in which even the constituent people would be bound by certain principles to be identified and enforced by judges.

Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections

Since the U.S. Supreme Court heard oral arguments in Hollingsworth v. Perry and U.S. v. Windsor, the number of states recognizing same-sex marriage has exploded. Even though the Supreme Court “stopped short of deciding whether the Constitution guaranteed a right to same-sex marriage,” the Court’s basic newly enacted legislation as well as judicial decisions recognizing same-sex marriage. The net effect has been to erase a boundary that had largely confined same-sex marriage to the Northeast. In jurisdictions that voluntarily enacted same-sex marriage, religious liberty protections for religious objectors who adhere to a heterosexual view of marriage — exempting them from requirements to facilitate marriages inconsistent with their religious beliefs, by providing a reception hall, for example — proved vital to the legislation’s success. In many Enacting Jurisdictions, more robust protections resulted in successful legislation where a bill with thinner or nonexistent protections had failed just years before. Even though same-sex marriage recognition in the Enacting Jurisdictions has thus far been yoked to religious liberty protections — delivering important gains to supporters and opponents alike — prominent voices on each side now caution against compromise. Buoyed by their recent judicial victories, some supporters have hardened against compromise. With the recent spate of favorable judicial decisions, compromise may simply appear increasingly unnecessary. Opponents are hardening in their stance, too. Far from folding in the face of the momentum carrying same-sex marriage across the country, some thought-leaders urge opponents to double down on their opposition. These opponents see only one way forward: fighting to the bitter end. This Essay contends that we stand at a critical moment in the same-sex marriage movement. A clear-eyed examination of the marriage movement’s success — and the challenges facing it going forward — reveals that both sides will benefit from remaining at the bargaining table, although the gains to each will be different. For same-sex couples, voluntary recognition of same-sex marriage by legislation delivers the benefits and security of marriage today. True, many believe that the juggernaut of lower court decisions requiring same-sex marriage will lead in the near term to a favorable Supreme Court decision. Although that result is increasingly likely, it is nonetheless not assured. Moreover, the unanimity of decisions striking marriage bans may, ironically, delay an ultimate resolution by the Supreme Court, which often declines review until a meaningful circuit split arises. For marriage equality opponents, the voluntary embrace of same-sex marriage permits legislators to consider competing considerations, including concrete ways to permit those who adhere to a traditional view of marriage to continue to do so without facing civil lawsuits or government penalty. Part I shows that same-sex marriage has spread across America through three different avenues: judicial decisions, state laws enacting same-sex marriage, and ballot initiatives — with judicial decisions being fraught with risk for religious dissenters while legislative or popular enactments offer important, if flawed, protections to religious organizations and individuals. Parts II and III document that a “perfect storm” of characteristics favoring marriage equality in jurisdictions that voluntarily embraced same-sex marriage, together with extensive bargaining around religious liberty, nudged same-sex marriage legislation over the finish line. Even with these favorable conditions, marriage equality bills just barely squeaked over the line to enactment, helped by religious liberty exemptions. That advantageous political terrain is now nearly exhausted, as Part IV documents. Going forward, one would reasonably expect more robust religious liberty protections to play a central part in any legislative compromises over same-sex marriage, at least for the near term. Part V evaluates the impulse of some opponents of same-sex marriage to dig in, resisting same-sex marriage at all costs. In part, opponents rely on constitutional bans against same-sex marriage. Constitutional bans may well not survive judicial challenge. However, even without court action striking a ban, constitutional amendments banning same-sex marriage do not provide the bulwark against change that some assume since many can be repealed almost as easily as enacting ordinary legislation. Part VI concludes that, in the tougher political terrain that looms, those who care about marriage equality can continue to sew up legislative victories — but the price tag in the short term will be to agree to robust religious liberty protections for dissenters. Those who wish to protect religious objectors from the unintended consequences of same-sex marriage should act with all deliberate speed to lock in robust religious liberty protections, because the window for securing them is almost certainly closing.

Legislative initiative of citizens in Romania and at the European level

The citizens’ initiative right enables them to directly articipate in the law-making process. Issues of great social importance can thus be brought to the attention of the ordinary legislator who is called to embed into a normative content the will of those whom it represents. The importance of the citizens’ initiative right for the strengthening of democracy led to its enshrining into States’ Constitutions, as well as its stipulation into EU regulations. Nonetheless, even though, in theory, the citizens’ initiative right represents a basic element in terms of participation of the people in the democratic decision-making process, in practice, the purpose of the regulation has not been reached. Thus, the citizens’ initiative right is rarely exercised, also because of a lack of information on its utility, significance and mechanisms. Based on these realities, within this study, we shall carry out an examination of the regulations concerning citizens’ legislative initiative in Romanian law and at the Europea...

Konstytucyjne publiczne prawo gospodarcze

Wolność gospodarcza należy do podstawowych wartości konstytucyjnych. Podlega ona interpretacji w orzeczeniach Trybunału Konstytucyjnego jako zasada konstytucyjna i konstytucyjne prawo podmiotowe. Celem tej interpretacji jest wyznaczenie miejsca wolności gospodarczej w konstytucyjnym ujęciu społecznej gospodarki rynkowej oraz ustalenie jej cech znamiennych (tożsamości). Rozumienie wolności gospodarczej wyznacza też stanowisko ustawodawcy, który w regulacjach ustawowych ujmuje zagadnienia przedsiębiorczości. Uwzględnia stanowisko Trybunału Konstytucyjnego na temat zasad stanowienia prawa. Istotne znaczenie dla charakterystyki wolności gospodarczej ma również prawo europejskie. Nauka publicznego prawa gospodarczego winna zestawić konstytucyjne ujęcie wolności gospodarczej z jego rozumieniem w ustawodawstwie zwykłym oraz orzecznictwie przez uwzględnienie także perspektywy europejskiej.

La Autonomía municipal en el constitucionalismo latinoamericano: realidad y perspectivas en el caso de Cuba

The present work intends to value the regulation that, in the Cuban Constitution and in the ordinary legislation, it has been made of the municipal autonomy, taking like refierence for it doctrinal approaches and the allusive norms to its present in the Latin American constitutions, in order to specify in what measure this belongs together with the accepted tendencies and to determine the main susceptible points of improvement. For it is appealed it to the use of the doctrinal juridical method in order to specify the content and reach of the main categories that are of constant it indexes in the same one; the method of analysis of documents like base for the study of the consulted doctrinal and legal sources; and the method compared to contrast our study object in diverse norms as means to price the development level reached by this.

Karl Olivecrona on Legislation

The multidisciplinary study of legislation, or Gesetzgebungslehre, as the Germans call it, has yet to fully penetrate the defense wall of legal philosophers, who have so far focused mainly on the more or less finished product of legislation, namely the legal system (in their inquiries into the nature of law), or on the activities of judges and other law-appliers (in their study of legal reasoning), or, in some cases, on normative or evaluative questions, such as whether there is an obligation to obey the law. But the interest among legal philosophers in questions concerning legislation seems to be on the increase. Against this background, it is of some interest to note that the Scandinavian realist, Karl Olivecrona, touches on questions concerning legislation in his otherwise traditionally oriented writings on jurisprudence. As one might expect, his account of legislation follows a reliably realist pattern in that it is concerned not with the capacity of legislative products to establish legal relations, but with their capacity to cause people to behave in one way or another. More specifically, Olivecrona rejects the view that legal rules have binding force and can confer rights and impose duties, arguing instead that they are independent imperatives possessing (what he calls) a suggestive character by virtue of which they influence the citizens (and the legal officials) on the psychological level. This suggestive character depends in turn ultimately on the reverence (or respect) for the constitution on the part of the citizens (and the legal officials): They are disposed to obey the independent imperatives because they revere the constitution. On the basis of this account of legislation, Olivecrona identifies important similarities (and some differences) between ordinary and revolutionary legislation. Olivecrona's account is not without its problems, however. One may, for example, wonder precisely what it means to say that independent imperatives have a suggestive character, and that the citizens (and the legal officials) revere the constitution. These questions will be addressed in the lecture.

‘The Roles Bureaucrats Play’: The Input of European Parliament (EP) Administrators into the Ordinary Legislative Procedure: A Case Study Approach

The European Parliament (EP) is branded as one of the winners of the Lisbon Treaty. It has seen its role expanded to more than 40 Treaty articles and obtained the status of co-legislator in previously uncharted territory such as agriculture, fisheries and legal migration. This raises the question of how the EP adapts itself to the newly obtained powers in order to fulfill its legislative role. A very pertinent issue in this context are the type of tasks that are delegated to EP civil servants as this might have implications for the democratic legitimacy of the directly elected Members. This contribution identifies the conditions under which civil servants take up different types of tasks by looking at four cases in two different policy areas: migration and fisheries. Political importance of the dossier and expertise are identified as key determinants for the role of civil servants in the ordinary legislative procedure.

An Analysis of Policy-Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy-based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.

Cooperação, liderança e impasse entre o Legislativo e o Executivo na produção legislativa do Congresso Nacional do Brasil

This article discusses the relationship between Brazil's Legislative and Executive Branches in lawmaking. It identifies elements in the lawmaking system in Brazil and strategic interactions between hierarchical channels (Constitutional, complementary, and ordinary legislation) in the context of coalition Presidentialism. The model was applied to bills submitted between 1999 and 2006 and generated data that run counter to the widespread perception of a sharp divide between the respective agendas of the two branches and the hypothesis of absolute predominance by the Executive. However, the prevailing government coalition predominated in all the lawmaking channels. Various types of interaction between the branches were suggested, according to patterns of conflict and leadership by the players (leadership, cooperation, and impasse), as generated by the bills' contents.

A Constitution Like Any Other? Comparing the European Constitution with Nation State Constitutions

The Treaty of Lisbon is analyzed as the constitution of the European Union drawing on the tools of constitutional economics. It is shown that (i) the increased number of policy areas to which the newly created ordinary legislation procedure will be applied is likely to lead to more legislation. (ii) The creation of a president of the European Council will not make the Union presidential. (iii) The subsidiarity principle in combination with the monitoring competence of the national parliaments is unlikely to create an important brake to ever more centralization. (iv) Since citizens’ initiatives do not have any formally binding effects, they are unlikely to have any such effects factually. (v) The Charter of Fundamental Rights gives the ECJ yet another tool to enhance its influence which it is expected to use. (vi) The possibility of exiting from the Union is unlikely to change much, as the Union could not have prevented any member state from exiting even before. (vii) The tremendous hurdles to explicitly change the constitution in combination with the large number of memberstates further re-enforce the influence of the ECJ. It is further discussed whether the allocation of competences can be said to have created a “new separation of powers.

Evidence Re Fixed Election Date Legislation Submitted to the House of Lords Select Committee on the Constitution

This paper was submitted to the House of Lords Select Committee on the Constitution by invitation to comment on the proposed Fixed-Term Parliaments Act. It addresses only the Canadian experience with fixed election date legislation.As of September 1, 2010, the federal government and eight of the thirteen provinces and territories in Canada have enacted similar fixed-term Parliaments legislation. Such laws are referred to in Canada as “fixed election date” legislation because they generally set a specified date for elections at four year intervals, rather than imposing a limit on the duration of Parliaments as the proposed Fixed-Term Parliaments Act does. All such laws have limited legal force because they explicitly preserve the powers of the Governor General or the Lieutenant-Governor (in the case of the provinces) to dissolve Parliament. Only a constitutional amendment can alter the Governors’ powers.As a further result of the continued constitutional power of the governors over dissolution and the lack of power to alter this through ordinary legislation, fixed election date legislation in Canada is little more than a statement of political intention. This has been demonstrated most clearly in the federal case where the Prime Minister ignored his own fixed-election date legislation which provided that a general election was scheduled for October 2009. Instead, the Prime Minister sought and received an early dissolution from the Governor General in September 2008 for an election the next month. The legality of this course of action was later confirmed by the courts. At this point, the federal fixed election date legislation is widely considered to be a failure.The experience of fixed election date legislation in the provinces and territories has differed from the federal experience, in large part due to the existence of majority governments in those jurisdictions. As of September 1, 2010, six elections have been held under a fixed election date regime. The conventional wisdom is that fixed election date legislation is working in the provinces/territories but has not gotten off the ground at the federal level. However, I believe that this account is too simplistic. A deeper analysis reveals that proponents of fixed election date legislation overpromised and underdelivered. Moreover, even where they appear to be working, fixed election date laws may be contributing to the continuing degradation of the democratic body politic in Canada.Fixed election date legislation grew out a general malaise with Canadian politics in the 1990s captured in a phrase well-known to observers in this country: “democratic deficit.” Legislation was supposed to increase transparency, level the political playing field, improve governance and increase voter turnout. At best at this early juncture, the results are mixed. The legislation has certainly not increased voter turnout nor has it increased public faith in the electoral system. It creates the potential for future clashes between the Governor General and the Prime Minister, and between their provincial counterparts. For those considering fixed-term Parliaments, the Canadian experience with fixed-election dates produces two questions. What is the problem for which fixed-term Parliaments are intended to be the answer? Might there be other problems created by fixed-term Parliaments?

Direct Democracy, Courts, and Majority Will

VOTERS IN MANY STATES use ballot propositions to enact laws on everything from term limits and taxes to abortion and same-sex marriage. Many of these propositions test the boundaries of federal and state constitutional law. This pits the people, who support the propositions and who are sovereign, against the parchment, which derives authority from ratification by people who came before. Judges, some elected, mediate this conflict by interpreting vague constitutional language. These ingredients make judicial review of propositions explosive. The practice exposes fundamental tensions in American law, including conflicts over when minority rights should yield to majorities, the reach of judicial review, and the optimal level of judicial independence. In Direct Democracy and the Courts, Ken Miller, a political scientist and lawyer at Claremont McKenna College, makes an important and impressive contribution to scholarship in this field. The book blends history, institutional analysis, case law, and comprehensive data to tell the story of propositions, courts, and the constitutions that bind them. Miller does not advance a theory but instead explores a theme: the relationship between the initiative process and the judiciary. Sometimes that relationship has been contentious, manifesting the conflict between popular sovereignty and the judiciary that has simmered since the founding.1 Other times the relationship has been harmonious. Miller describes the times, places, and manners in which that relationship has developed. The book begins with a short, lucid history of direct democracy in the United States. This includes a review of the Populist and Progressive movements and an interesting look at the political lives of William Jennings Bryan, Woodrow Wilson, Theodore Roosevelt, and William Howard Taft. Illustrating the longevity of the relationship between initiatives and courts, Miller describes failed legal challenges in the early 1900s that sought to invalidate direct democracy on federal constitutional grounds. The book shows which states adopted direct democracy and when they did so, the frequency and timing of its use, and the topics initiatives have addressed. In 50 pages Miller presents a thorough overview of America’s experiment in direct democracy, with abundant citations for readers who want more detail. The second part of the book, its heart, focuses on conflicts between initiatives and the judiciary. Miller begins by explaining that courts are “best-positioned to place a check on initiatives” (p. 79) because of their role in interpreting constitutions and their willingness in the last century to enforce certain rights. He describes the debate among legal academics and judges over whether to hold propositions to stricter, looser, or the same constitutional standards as ordinary legislation. He then presents original data on post-election legal challenges to initiatives between 1904 and 2008 in the five “strongest” (p. 104) initiative states: California, Oregon, Washington, Colorado, and Arizona. These data are broken down by state, time period, and topic of proposition. The book presents and analyzes, albeit less systematically, data from other states as well.

Exploring Ways of Implementing International Human Rights Treaties in China

China has ratified over 20 human rights treaties. While many laws that were enacted during the reform period relate to human rights, a specific human rights law has not yet been adopted. However, a human rights law has been drafted by Chinese scholars. This article provides an overview of the contents of the Experts' Draft and compares the substantive human rights enshrined in the international covenants with those guaranteed in the proposed law. The analysis then focuses on doctrinal questions of the interpretation and application of the human rights law in addition to its relationship with other sources of law such as the Chinese Constitution and ordinary legislation. It explores how such a law would fit into the current doctrine and practice of the domestic implementation of treaty obligations and whether the Draft can be reconciled with the official Sino-Marxist dynamic-concrete concept of human rights. The article identifies the conditions in which a dedicated human rights law can become an effective means of treaty implementation and it also examines the likeliness of ICCPR ratification and the prospects of actual human rights improvement.

‘Regulatory Responsibility’: embedded neoliberalism and its contradictions

The proposed Regulatory Responsibility Bill is part of the unfinished business of regime change (Wade, 2008) from Keynesian welfarism to neoliberalism between 1984 and 1994. The imposition of far-reaching pro-market disciplines on domestic regulation is intended to complement the codification of monetarism and fiscal austerity through the Reserve Bank Act 1989 and Fiscal Responsibility Act 1994 (since absorbed into the Public Finance Act). Although these disciplines are inscribed in ordinary legislation they are attributed a ‘constitutional’ standing that their proponents hope will embed them in perpetuity.

The limitations of restitutionary equality

This is compact review and analysis of state of law in South Africa . Specific reference is made what has been called or equality. From analysis it appears current law shows certain imbalances are difficult reconcile with provisions of Constitution. To point out shortcomings in law which is well intended resolve burning problems of inequality, can easily be misunderstood in contemporary circumstances as reactionary resistance against necessary process of justifiable drive for equality. Such is certainly not purpose of this review. The intention is however argue position striving for must be balanced process in order ensure boundaries of themselves are not transgressed, since would contradict very essence of equality. In first section constitutional provisions on are briefly described. It is noted Constitution does not establish a right but it consistently deals with as value. The wording of section 9 does however justify term such as the right. Next approach of judiciary equality, in which analytical steps of interpretation were developed by Constitutional Court are set out, is reviewed with special mention of role has been allocated value of human dignity in interpretation and applicaion of rights. In third section an answer is sought question what means. As opposed choice of jurisprudence in USA for formal notion of equality, South African courts operate with concept of equality. It is in this context mention is made of remedial or restitutionary equality. Equality is given meaning which implies action. This is supported partly by wording of sections 1 and 9(2) of Constitution, but not by formulation of sections 7(1), 9(1), 36(1) or 39(1). The only constitutional provision which imparts meaning directly notion of equality, is section 9(2), providing includes full and equal enjoyment of all rights and freedoms. This gives meaning as value, rights and as description in Constitution of nature of society is being striven for. The complexity and multi-faceted nature of does not allow for simplistic approach its meaning. The boundary between and inequality is quite sharp and mobilization of for achievement of political, ideological or pragmatic goals can readily lead inequality and injustice. Against this background most important pieces of legislation, Employment Equity Act, 1998 and Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, are discussed. These Acts were adopted to promote achievement of equality, legislative and other measures designed protect or advance persons, or categories of persons, disadvantaged by unfair in terms of section 9(2) of Constitution. Both however contain provisions go beyond scope of Constitution by e.g. addition of grounds upon which unfair discrimination is prohibited and by excluding affirmative action measures from meaning of unfair discrimination. The Constitution can not be interpreted in manner would allow unfair discrimination for any purpose. The legislation however seem disregard possibility of affirmative action becoming discriminatory in itself. This resonates with view substantive equality allows for measures that favour relatively disadvantaged groups at expense of those who are relatively well off. It is however submitted not current ideology behind affirmative action, nor one's preferred understanding of or analytical model is being used, can determine what justifiable content of law should be: question is rather what may be justified in law, specifically under Constitution. The form in which elements of legislation are cast, viz. guidelines for its application and illustrative lists of unfair practices, harbours danger uncareful interpreters of law could be seduced give precedence legislation above Constitution. This would result in persecutory application of law in terms of examples in stead of constructive and principled approach required by Constitution. The laws also attempt extend list of grounds contained in section 9(3) of Constitution upon which discrimination is presumed be unfair by addition of HIV status, family responsibility, political opinion, socio-economic status, nationality and family status. The constitutionality of amending section 9(3) in this manner by means of ordinary legislation is suspect, especially if it is considered differentiation which is justifiable under Constitution may be rendered unfair discrimination under ordinary legislation. It is concluded an emphasis on only restitutionary element causes conceptual tension occur within multi-faceted notion of equality. This can not be explained only in terms of distinction between formal and equality, since an over-emphasis of restitution will inevitably bring about imbalances in outcome of actions, i.e. within framework of striving for equality. Some commentators, courts and legislature tend attempt improve on Constitution insofar as achievement of is concerned. It is submitted such attempts are unnecessary, since Constitution makes sufficient provision for restitutionary process while balance of comprehensive notion of is maintained in form of as core value. The limitation of concept of restitutionary will unjustifiably impoverish and partially neutralize constitutional text. Lessons must in this regard be learnt from pre-constitutional errors of positivistic legal interpretation.

A Balancing Act: Modern Equality vs Traditional Nobility in Tonga

The article examines the treatment of commoners and nobles under the Tongan Constitution and ordinary legislation. This paper argues that Tonga fails to meet internationally acknowledged equality standards because "Tongan culture clashes head-on with basic human rights requirements". The article provides some suggestions how to achieve a balance between upholding Tongan culture and traditions and complying with internationally accepted equality standards.

Updating Constitutional Rules

The dominant mode of updating constitutional meaning in the United States is via judicial interpretation, or ordinary legislation, rather than constitutional amendment. On the Supreme Court’s current approach to interpretation, this also creates a serious potential problem when it comes to the updating of constitutional “rules”, as opposed to “standards” – because when it comes to such rules, the Court generally declines to adopt an evolutionary approach to the interpretation and also often strikes down attempts by Congress or state legislatures (or even voters) to pass substitute updating legislation existence. The article, however, argues that at least part of this current approach by the Court is mistaken, and that when it comes in particular to attempts by Congress or state legislatures to pass such updating legislation, the Court should instead apply a clear margin of deference to determining the validity of relevant legislative action. While theoretically novel, clear precedent for such an approach can be found in federal courts’ approach to the Treaty Clause, as well as several other constitutional contexts. By its indirect nature, such an approach also largely avoids potential objections to more direct forms of interpretive updating by the Court in the context of various constitutional rules.

Cooperation of courts: The role of supranational jurisdictions in Europe

The constitutional protection of individual rights has been in place, in developed democracies, for several decades. In all the countries that have adopted the idea of a written constitution, there is a set of constitutional provisions on rights and liberties, and there are mechanisms for the protection and enforcement of those rights and liberties by an independent judiciary. A constitution is no longer something that functions exclusively within the sphere of politics; rather, it is regarded as the Grundnorm , determining the legal system as a whole and, in particular, the status of the individual. While, in most European countries, the last word in constitutional interpretation is reserved to a separate constitutional court, all courts and judges have a right (as well as an obligation) to apply constitutional provisions as they arise in the context of ordinary legislation and administrative action. In effect, constitutions became “ living instruments, ” existing not only as written texts but also (and fi rst of all) as sets of judicially created rules and principles. In Europe, we are already well acquainted with the “ juridifi cation ” of national constitutions. As correctly observed by Andras Sajo: [C]ontinental constitutional adjudication is strongly in favor of the increased protection of fundamental rights. In view of this fact, the majority of Italian, German and Spanish cases grow out of actual disputes, and constitutional review there occurs mostly as appellate constitutional adjudication. Constitutional adjudication does not primarily affect the legislature but it does the ordinary administration of justice and in practice, it extends constitutionalism (primarily through the protection of

The Constitution Outside the Constitution

In countries that lack a single canonical text, is defined to include all those laws that perform constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, is generally thought to include a variety of constitutive statutes, such as Magna Carta, Parliament Acts, and Human Rights Act. This article proposes a thought experiment: What if we defined U.S. by function, rather than by form? Viewed from this perspective, the Constitution would include not only canonical document but also a variety of statutes, executive materials, and practices that structure our government. It would include, for example, Judiciary Act of 1789, Administrative Procedure Act, Executive Orders establishing Presidential control of administrative rulemaking, and non-statutory rules that govern voting in House and Senate and structure of our major political parties. These sorts of extra-canonical materials perform basic constitutional functions of constituting government and conferring rights on individuals. What they lack is a third characteristic shared by some (but not all) constitutions: formal entrenchment against legal change. Entrenchment has become central to American conception of a constitution, but I propose here to decouple entrenching function from constitutive function for purposes of constitutional analysis. This approach offers a relatively simple answer to one of most important problems in constitutional theory: How do we explain evident fact that structure of our government and rights of people have changed pervasively since Founding, in ways that are simply not reflected in Article V amendments to canonical text? The answer is that constitutional order can change in this way because most of it was never entrenched in canonical text to begin with. Most of salient changes - growth of administrative state, proliferation of individual entitlements - are changes to our outside constitution that are neither mandated nor forbidden by canonical document. Because I do not view these changes as any more entrenched than arrangements they replaced, I do not need to develop any complex and contestable theory of higher lawmaking to set these changes apart from other ordinary legislation. The functional account of constitutionalism offered here also has implications for constitutional doctrine and scholarship. My account tends to undermine doctrinal prescriptions grounded in a sharp dichotomy between constitutional and statutory claims. Such prescriptions would include arguments that federal courts' irreducible jurisdiction under Article III should be defined by their power to hear constitutional claims, or that federal civil rights statute, 42 U.S.C. § 1983, should be interpreted to exclude claims under federal statutes and regulations. Likewise, recognizing constitutive functions of statutes and regulations suggests that basic constitutional values - such as federalism or concern for individual rights - are just as relevant to statutory construction as they are to interpreting constitutional text. Finally, functional account suggests a broader set of concerns for constitutional law teaching and scholarship; in particular, it suggests that constitutional scholars should be concerned with institutional design of constitutive statutes, treaties, and regulations rather than solely focused on interpreting canonical text.

La influencia del constitucionalismo francés en la fase de iniciación constitucional española (1808-1834)

The influence of French constitutionalism is evident in the period of constitutional reaffirmation in Spain during the reign of Isabel II. This moderantist constitutional phase is committed to the «theory of the internal constitution» and takes as its point of departure the historical recognition of two basic principles that articulate (except for the democratic constitution of 1869 and the federal project of 1873) the Spanish constitutional and political reality: the Monarchy and Parliament. The shared sovereignty of the King and Parliament, together with a regime of collaboration between the powers arises from this reality. The French moderantism of the Charters of 1814 and 1830 is reflected in our Isabelline texts and the attempts at reform of the Constitution of 1845. The Constitutions of 1837 and 1845 break with the revolutionary liberalism of Cadiz (thus the Constitution of 1837) and they later accommodate it to a doctrinarian and transactional liberalism that will receive the European moderantist current, as can be observed in the 1845 text. As to the dogmatic context, for the first time in Spain a systemization of rights appears, postponing its development to the ordinary legislator. The shared sovereignty between the King and Parliament is the basic concept in order to understand the moderantism that can be appreciated in the Spanish texts of 1837 and 1845, as well as the French text of 1830. In contrast to the monocameralism of radical liberalism, a perfect bicameralism is consolidated between the lower house elected by universal suffrage and a Senate which acts as a moderator, not only due to its composition but also because it enjoys some competences similar to the elective House. Equally and omitting the first revolutionary liberalism, the rigid separation of powers gives way to a collaboration between them— appointment by the King of ministers who enjoy parliamentary support; the dissolution of Parliament by the King in the face of possible confrontation with the Government; compatibility of a ministerial post with a parliamentary mandate, fostering the powers of the Crown whose presence in the legislative context is quite intense, thus confirming a parliamentary regime whose precedents can be found while the Royal Statute in Spain and the Charter of 1814 in France were in force.