Completing the Constitution: The Fourteenth Amendment and Constitutional Rights

Although the Fourteenth Amendment has been the vehicle for anumber of transformations in the protection of rights, therehas been no consensus on what it means. The amendment is sometimesheld to have revolutionized the Constitution, in effect replacingthe traditional federal system with a more national system.It is also argued that the amendment essentially reaffirmedthe prewar Constitution. The truth appears to lie with neitherside: the drafters of the amendment attempted to "complete theConstitution," neither to reform it radically, nor to reaffirmit simply. In doing so, they unwittingly followed in the tracksof the original "father of the Constitution," James Madison,who believed the original Constitution to be defective in importantways. Proper attention to the context and the structure of thetext of the amendment reveals just how the amendment was to"complete the Constitution." So examined, the amendment revealsitself to be a precisely stated, clearly drafted text, containinga number of new constitutional principles. Properly understood,the amendment affords constitutional protection for rights alreadypossessed in some sense, but therefore unprotected in the oldConstitution.     

公民的基本权利与宪法保障

保障公民的基本权利是宪法最主要、最核心的价值。近代宪法是在保障公民基本权利的过程中产生的,保障公民的基本权利是宪法永恒的主题。基于经济、政治和文化的发展,我国要通过修宪和宪法解释工作进一步确认一些与中国社会发展和人们生活息息相关的必要的基本权利,并通过规范国家权力和加强司法救济等手段来确保公民基本权利的实现。     

我国宪法权利的司法实施

社会转型使我国宪法权利案例大量出现,社会需要宪法权利的司法实施.以宪法的名义维权,大量宪法权利争议以行政法案例的方式出现,是对现行行政诉讼制度提出的要求.借助于行政诉讼保护宪法权利,行政制度规则在诉讼中面临挑战,社会迫切要求建立直接实施宪法的司法机制.     

人权的宪法保障解析

保障人权业已成为当代世界政治发展的主题,同时,也是社会主义民主政治建设的重要目标。人权与宪法相伴相随、密不可分。宪法作为现代民主国家的根本大法,是人权据以实现的最高准则。宪法作为人权保障书,既确认已有人权,又保障人权的实现和发展。现代宪法主要是通过合理配置权力、规定基本人权原则、确认人权内容和建立宪法保障制度来实现对人权的保障。     

Frank Meyer: The Fusionist as Federalist

Frank S. Meyer played a central role in defining the post-warAmerican conservative movement by defining and defending anideological "fusion" of traditional conservative principlesand libertarian political beliefs. While concerned with maintenanceof an objective moral order and the pursuit of virtue in theindividual, Meyer argued that the freedom of the person is thecentral and primary end of political society. The American systemof government, with its horizontal and vertical separationsof power, came closer than any political system in history toproviding the protection for individual liberties necessaryfor the effective pursuit of virtue. Federalism was particularlyimportant as it could forestall the centralization of governmentpower. Virtue, to have any meaning, had to be chosen freely,but providing for individual freedom provided no guarantee thatindividuals would pursue virtuous ends. By the same token, federalismand the separation of powers did not guarantee that state governmentswould adopt wise or moral policies, as the history of the civilrights struggle attests. Nonetheless, Meyer believed federalismwas essential if individual freedom was to endure.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

孙中山五权宪制中的国民大会

国民大会是孙中山后期五权宪制架构中的一个重要权力结构。从这一结构所承载的功能来看，它首先是一种“民主”的制度安排；同时，作为中央政制中针对政府权力的“结构性制约因素”，它又具有“宪政”的意义。章力图分析这一机构所折射出的政治理念的基本取向及其自身存在的问题。     

私有财产权的宪法地位及其历史发展

我国 2 0 0 4年宪法修正案完善了对公民私有财产权的宪法保障 ,但仍存在若干不足之处。宪法意义上的公民财产权与民法意义上的公民财产权具有不同内涵。我们应通过与西方发展历程的比较 ,从历史的角度审视我国私有财产权宪法地位之变迁 ,并以建设社会主义法治国家为指向 ,探讨如何完善公民私有财产权的宪法保障。     

论我国宪法权利限制的实质、困境与对策

尽管享有权利是人类社会生活的一部分,但为了维护公共利益,个人宪法权利还必须受到限制。然而,权利限制的最终目的还是为了保障人的生存与发展,进而实现人的价值。由于诸多原因的影响,我国宪法对公民宪法权利的限制存在着一定的缺陷,不利于公民宪法权利的实际享有。因此,亟需从宪法权利限制的原则、方式和具体条文等方面完善我国宪法权利的限制。     

The KwaZulu/Natal Indaba: A Federalist Proposal for South Africa

In Durban, South Africa, delegates from South Africa's politicalcenter proposed a federal solution to apartheid. Called theKwaZulu/Natal "Indaba," the plan proposes to merge two hithertosegregated jurisdictions and to bring majority rule to at leastone province of South Africa. The system envisioned by the planincludes a bicameral legislature, a consociational cabinet,proportional representation, minority veto over certain legislation,a segmented representative chamber, and enforcement of a comprehensiveBill of Rights. The "KwaNatal" plan also calls for a substantialdevolution of power, including the right of the provincial legislatureto repeal acts of Parliament that invade areas of provincialcompetence. This determination to extend local, multiracialautonomy put Natal officials on a collision course with thecentral government at Pretoria, which is trying to eliminatethe elected provincial governments.     

The State Constitutional Pedigree of the U.S. Bill of Rights

A direct comparison between the U.S. Bill of Rights and prominentEnglish common law documents shows that the first ten amendmentsto the U.S. Constitution have only a limited relationship toEnglish antecedents. Nor were the amendment proposals by thestate ratifying conventions the primary source of the U.S. Billof Rights. Instead, this famous addition to the federal Constitutionwas a summary of the common core found in the seven existingstate bills of rights. James Madison's use of this source restedupon colonial developments in rights theory, contrasting notionsof rights in England and America, competing notions of libertyin America in the 1780s, and the political exigencies surroundingthe ratification of the U.S. Constitution.     

The Virtuous Polity, The Accountable Polity: Liberty and Responsibility in The Federalist

The Federalist claims to present a republican response to thetypical political problems faced by republics. That solutionrequired a departure from all models of republics known at thattime, and in particular a break with Anti-Federalist modelsthat posited heavy reliance on responsibility, understood aseither political accountability or as moral and political virtue.The Federalist challenges the Anti-Federalist notion that a"no-gap polity" is the means to safe and effective republicanism.It also challenges those who believe that virtue of people orrulers is the precondition of a republican polity. Publius doesrequire quasi-virlues of certain sorts—and thus does notrely entirely on calculating selfinterest—but these aresignificantly different from the virtues posited by earlierrepublican theorists or certain contemporary interpreters ofThe Federalist.     

Federalist Institutions, Voting Behavior, and Party Systems in Spain

With the establishment of the 17 autonomous communities in Spainin the early 1980s, representation has been compounded. Thisarticles assesses the empirical implications of compounded representationin Spain by analyzing regional, national, and European electoraldata over time. Comparisons are also drawn across Spanish regions.In addition, the article discusses the effects of compoundedrepresentation on party systems and government formation inthe regions. Voting patterns vary depending on the level ofelection and also across regions. Party systems, subjectiveregional identity, and types of government in the regions arelinked as well. The evidence suggests that the federalizationof Spain has compounded representation by adding new layersof elections and representative institutions.     

Garcia: Of Federalism and Constitutional Values

In Garcia v. San Antonio Metropolitan Transit Authority (1985),a majority of the U.S. Supreme Court's justices did violenceto the principles of the U.S. Constitution by leaving the statesto take their Tenth Amendment complaints to the Congress. Inabdicating their proper constitutional role, the majority ofjustices ignored history, political realities, and constitutionalprinciple. The Constitution's institutional arrangements, ofwhich federalism is a key component, are an intrinsic part ofthe constitutional scheme by which government power is limitedand individual rights are protected.