Constitutional Theories and Constitutional Rights: Federalist Considerations

This article examines the contemporary controversy over constitutionalinterpretation and the differing understandings of constitutionalrights that underlie it. We first consider the character andbasis for interpretivism, that is, a jurisprudence that delineatesrights by reference to the intent of the founders and to theconstitutional text. Next, we review the non-interpretivistalternative, focusing on Ronald Dworkin's influential accountof constitutional rights. We conclude that despite its strengths,Dworkin's position does justice neither to the constitutionaltext nor to the connection between structure and rights in theUnited States Constitution. Finally, considering constitutionaltheory from the broader perspective of state constitutionalism,we conclude that its insights are limited to the U.S. Constitutionand offer some suggestions for a more adequate constitutionaltheory.     

宪法实施视域中司法裁判宪法援引的实证分析

全面推进宪法实施采用广义的宪法实施内涵,有利于将宪法基本原则和宪法规范贯彻落实到国家与社会生活的各个领域。司法裁判中的宪法援引是宪法实施在司法领域的具体实践,因此,对宪法援引的实证研究能够获得宪法实施的直观印象。借助于新兴的大数据技术,检索含有宪法援引内容的裁判文书,对其进行统计学处理和分析,形成关于宪法援引案件的系统性认知。在此基础上,运用宪法学原理对宪法援引进行解析,以主体为宪法援引的区分标准,将其分解为当事人宪法援引与法院宪法援引两种不同类型,便于深入考察司法实践中宪法援引的具体方式和实际效果,进一步印证宪法援引在推进宪法全面实施过程中所具有的实践价值。     

论住房权的宪法保障

战后,人权观念已经从消极的自然权利向积极的社会权利发展.住房权作为第二代人权被国际公约提出后,受到各国的普遍重视和立法保障,成为政府的法定义务.我国应该加强对住房权的重视和宪法保障.     

Paradoxes of Constitutional Democracy

Drawing on the work of Frank Michelman and Jürgen Habermas, I outline two interconnected paradoxes of constitutional democracy. The paradox of the founding prevents a purely democratic constitution from being founded, because the procedures needed to secure its legitimacy cannot be spontaneously self-generated. It displays an infinite regression of procedures presupposing procedures. The paradox of dynamic indeterminacy heads off any attempt to resolve this problem through constitutional amendment. It shows that we cannot evaluate the legitimacy of a dynamically evolving constitution based on projections of its future development. To do so, we would need a stronger basis for making probabilistic judgments about the constitution's future path. After exploring the problems of using constitutional patriotism as such a basis, I outline an alternative built on the ideas of dynamic constitutionalism and reflexive citizenship. It shows how a dynamically evolving constitution can promote its own legitimacy from within, simultaneously resolving both paradoxes.     

Federal Constitutional Power Over the Economy

This article examines the non-fiscal powers of the federal Parliamentof Australia to make laws to control the economy. Although thecommerce power in Australia was inspired by that in the U.S.Constitution, the High Court of Australia has not followed theliberal interpretation of the commerce power adopted by theU.S. Supreme Court since 1937. However, other express federalpowers, particularly those relating to corporations and externalaffairs, have been used for purposes that in the United Stateswould be encompassed by the commerce power. While the AustralianParliament does not have the degree of power possessed by Congress,the judicial trend is toward broader interpretations of federalpowers. Also discussed is Section 92 of the Australian Constitution,which declares that "trade, commerce and intercourse among theStates shall be absolutely free." This provision, which limitsboth federal and state power, was interpreted for many decadesas embodying the principle oflaissezfaire. In 1988 the HighCourt of Australia held that its scope is limited to prohibitinglaws that discriminate against interstate commerce with a protectionistpurpose or effect.     

Constitutional political economy in the European Union

This article surveys recent research in constitutional political economy in Europe. Although not all of the works discussed necessarily focus only on European constitutional issues or are written by Europeans, European constitutional issues figure importantly in each area surveyed. The article examines the literatures linking constitutional institutions to economic growth, government size, government deficits and corruption, bicameralism, direct democracy and federalism. Three exclusively European topics also are covered: constitutional issues in the transition countries, the structure of the European Union and the draft constitution for the European Union.     

The Constitutional Revolution in the United Kingdom

The changes to the territorial constitution in the United Kingdomsince 1997 have been extensive, but there is no agreement ontheir long-run significance, opinion being divided as to whetherthe changes are substantive or cosmetic and whether they representthe conclusion of a process or the start of a new one. Thisarticle connects these arguments with historical debates onthe nature of the British state and its distinctive constitutionand multiple identities in order to assess whether the devolutionprocess of recent years signals continuity, rupture, or reformof U.K. institutions. It concludes that some of the changeshave introduced quasi-federal features to the constitution andmark a historical watershed, although progress toward full federationremains limited.     

Voting on slavery at the Constitutional Convention

This paper provides the first empirical study of delegate voting behavior on issues of slavery at the U.S. Constitutional Convention. We analyze two categories of votes: those related to apportionment and those related to the regulation of the slave trade. Although it is widely believed that delegates voted consistent with the interests of their states on issues of slavery, we find that for votes on apportionment, the effect of state interests was enhanced by both the delegate’s personal interest and his religious background. For votes regulating the slave trade, state interests had a significant effect but only within specific regions.     

Constitutional Arrangements of Federal Systems

Constitutions alone do not make or break federations. In anyevent, they are not static, and evolve over time through judicialreview and political understandings, even in the absence ofconstitutional change. Nevertheless, institutions, principles,and procedures for which constitutions provide are significantinfluences on federations. This article examines some key featuresof federal constitutional arrangements in different federalsystems: the status of the constituent instrument; the divisionof powers between the orders of government; the scope of economicunion; regional disparity; and the relationship of federalismto the rest of the system of government. Today, there is a wideand widening variety of federal structures in systems aroundthe world. Borrowing is tempting, but should be done with care;federalist elements are closely linked with other aspects ofa system of government and with the historical, political, andeconomic setting in which it has been developed.