Constitutional Amendment and Revision Revisited

State constitutional amendment and revision procedures differsubstantially from formal procedures for amending the US Constitution.Popular participation and frequent change in state constitutionscontribute to significant differences between state and nationalconstitutional politics. State constitutions are widely perceivedto be "political’ documents, whose amendment is not muchdifferent from ordinary legislative and electoral politics.The U.S. Constitution is regarded as relatively permanent and"above politics." Neither perception is wholly accurate. Differencesbetween state and national procedures and politics are at issuein the recent revival of state constitutions as sources of civilrights and liberties. An analysis of constitutional amendmentssuggests that use of the ballot proposition, which is uniqueto the states, tends to restrict civil rights somewhat in criminaljustice while somewhat expanding support for new rights in otherareas, including those not fully protected by the national government.     

Australian Federalism and the Debate Over a Bill of Rights

Successive Australian Labor governments have tried to nationalizestandards for the protection of rights either by means of astatutory bill binding on the states under the Commonwealth'smuch expanded external affairs power, or by further entrenchingspecific rights in the Constitution. All these attempts havefailed for a variety of political and constitutional reasonsincluding, importantly, the strength of Australia's establishedsystem of federalism and parliamentary responsible government.The article examines the constitutional issues underlying thedebate over a bill of rights for Australia, arguing that Labor'sattempts to implement a bill of rights have been inspired bya preference for more centralized government whereas the defeatof such initiatives indicates, the established strength of Australianfederalism.     

Toward Making a Proper Space for the Individual in the Ethiopian Constitution

A symbolic, normative, and institutional investigation of the 1995 Ethiopian Constitution reveals that the individual is displaced and locked in the periphery as much of the socio-economic and political ecology of the state is occupied by Nations, Nationalities and Peoples (NNPs). The Constitution presents and makes NNPs authors, sovereigns and constitutional adjudicators by adopting a corporate conception of group rights. As this corporate conception of group rights permeate and structure the organization of the Ethiopian state and government, the individual is relegated in the constitutional order. In order to make the transition to constitutional democracy sustainable, it is argued that the Constitution should accommodate and ensure individual autonomy by adopting a collective conception of group rights. This offers both the normative basis and institutional safeguards to strike a proper equilibrium between group rights and individual rights.     

The Politics of Constitutional Change in a Federal System: Negotiating Section 92A of the Canadian Constitution Act (1982)

This article examines the process of constitutional change surroundingthe enactment of the natural-resource amendment (Section 92A)to the Canadian Constitution Act (1982). It traces the motivationsbehind the adoption of the clause to a combination of long-termexogenous factors originating in the OPEC-inspired price risesof the 1970s, and short-term endogenous factors particular toCanada's political and institutional arrangements, includingunpredictable patterns of judicial arbitration of constitutionalissues. The presence of endogenous and exogenous "shocks" tolong-established constitutional modus vivendi allows some predictionsto be made about the general nature and direction of futureconstitutional change. However, the workings of short-term politicaland institutional variables make it impossible to predict theexact content of the constitutional response to such influences.This finding supports Banting and Simeon's hypothesis that constitutionalchange is political process subject to political forces in societyand that constitutional change, like constitution-making, remainsan art and not a science.     

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.     

浅谈我国政治体制改革的必要性

自改革开放以来,中国政治体制改革已经取得许多成果,如社会主义基本政治制度的进一步完善,依法治国方略的有效实施,尊重和保障人权写进宪法,"一国两制"的成功实现等等。在社会转型与政府机构改革交织的关键时期,必须继续深化政治体制改革,才能更好地巩固改革成果,从而顺应我国经济和社会发展的需要。     

Constitutional,legal and political problems of local government in Nigeria

The new Nigerian local government system was clearly intended by its creators to be a representative and democractic system of devolution. The speed with which elected councils have been dissolved and replaced by caretaker committees and state appointees contrasts strangely with the constitutional provision that there should be a system of local government by democratically elected local councils. The constitutionality of dissolution has been confused with the constitutionality of further local government reform. Dissolution should be seen as an emergency measure to be used rarely in cases of proven maladministration by a local government. Further reform and reorganization of a state's system of local government should be regarded as a legitimate power of the state legislature. The role given by the Constitution to local government should not be interpreted as entrenching the system. Constitutional amendment is not required should further reform be necessary.     

The Progressive Ratcheting of Environmental Laws: Impact on Public Management

One of the problem-making tendencies in environmental policymaking has been an incremental approach to regulation and control. Either because the full dimensions of an environmental problem are not perceived or because political resistance compels step-by-step action, environmental controls tend to be applied progressively, beginning with nominal, largely ineffectual, retroactive declarations. Failing to meet objectives, laws are toughened and extended year by year until the severty of sanctions begins to defeat their intended effects. The fractionized state of environmental law, focusing on specific problems of pollution and subject to changes in interpretation, makes observance and enforcement difficult. The National Environmental Policy Act of 1969 could have facilitated the unification of environmental policy; unfortunately presidents and congresses have not chosen to use it for this purpose. Meanwhile, because environmental protection per se is relatively new to public law and policy and has few roots in the common law, private citizens aggrieved by political obstruction of their expectations have appealed to the courts for relief and compensation. Conservative courts have granted this relief under the "taking" clause of the Constitution. Extraordinary measures in constitutional law may be necessary to resolve an impasse in public policy resulting from conflict between public interests and private rights as interpreted by the judiciary.     

Alienation and Belonging - Women's Citizenship and Emancipation: Visions for Sudan's Post-Islamist Future

This essay examines Sudanese Islamist debates about the position of women within an Islamic framework, oppositional groups' stances on the nature of a post-Islamist Sudan and women's role in the nation. The author critiques oppositional groups for a lack of vision for a post-Islamist gender egalitarian Sudan and feminism for its lack of clarity about the concept of women's emancipation. The author argues that all groups in Sudan have not extended a visionary approach to women, but have been limited to expressions about "women's rights." Using the concepts of "emancipation," "gender egalitarianism," "citizenship," "alienation," "belonging," and "subject," the author deconstructs segments of crucial political documents such as Islamic decrees, the new Sudanese Constitution (1998), the "Asmara Declaration" of the National Democratic Alliance, and various statements by political parties in exile. Using excerpts from women's narratives, the author attempts to illuminate Sudanese women's self-identification, belonging, and citizenship.     

The Dead Hand of the Past? Toward an Understanding of “Constitutional Veneration”

Some observers argue that excessive veneration of the U.S. Constitution has blinded Americans to its flaws and made them reluctant to consider necessary reforms. In this paper, we test the assumptions that underlie these claims. We report the results of two survey experiments that examine the existence and effects of constitutional status quo bias at both the state and federal levels. Our findings support the notion that a proposed policy involving constitutional change imbues the constitutional status quo with normative value and, in turn, disposes individuals to resist the proposal. These results hold even at the state level. In addition to the institutional obstacles to constitutional amendment, therefore, we find evidence of another, psychological barrier to constitutional change that is based specifically in a sense of constitutional attachment.     

Harmonizing national law with inter-American human rights law: Evidence from Mexico

Conventionality review is a recent Latin American doctrine seeking that states which had ratified the American Convention of Human Rights verify the conformity of their national laws to norms of the Convention. In Mexico, several changes have placed the country in a better position to follow this inter-American doctrine: 1) a 2011 human rights constitutional amendment; and 2) an interpretation handed down by the Mexican Supreme Court after its appraisal of the Rosendo Radilla-Pacheco case. These events allow all judges in the country (federal and local) to disregard national laws if they contravene norms established in the Convention or the Constitution. How then are these changes operating in practice? This article explores the extent to which conventionality review is being used by intermediate level court's judges and defenders in the states of Jalisco, Nuevo Leon, and Oaxaca.     

Constitutional and Human Rights Disturbances: Australia’s Privative Clauses Created Both in an Immigration Context

With the arrival of another wave of “boat people” to Australian waters in late 2009, issues of human rights of asylum seekers and refugees once again became a major feature of the political landscape. Claims of “queue jumping” were made, particularly by some sections of the media, and they may seem populist, but they are also ironic, given the protracted efforts on the part of the federal government to stymie any orderly appeals process, largely through resort to “privative clauses”. Such clauses demonstrate the many ways in which human rights of those seeking asylum in far-off lands and are potential future immigrants, who often lack much-touted needed papers, yet who are for the most part genuine refugees, are subject to the slings and arrows of political fortune (and misfortune). Approaching the courts if treated unfairly or seeking a further decision as to your fate would seem one of the fundamental premises of human rights. Yet privative clauses—or attempts to ouster the jurisdiction of the courts and to insulate decisions from appeal—have become an increasingly frequent feature of the Australian migration legislation. With a seemingly watertight federal constitutional power set in stone since 1901, to deal with migration and aliens, and without the tempered contemporary update of a federal Bill of Rights, the Australian federal government has been able to narrow the grounds of judicial review in those contexts. We argue that the concerted efforts to deny such fundamental rights of appeal to those most in need of the full armoury of the protection of the law in a modern, affluent democracy, constitutes both a breach of their human rights and a breach of core constitutional principles such as separation of powers. Those principles may not be formally articulated in the text of the Australian Constitution, but in our view they are implicit in the constitutional arrangements, and hence we can conclude with the arguments of former Justice of the High Court of Australia, Michael Kirby, who asked—to whom does sovereignty truly belong?     

The Role of Semi-Direct Democracy in Shaping Swiss Federalism: The Behavior of Cantons Regarding Revision of the Constitution, 1866-1981

Swiss federalism operates as a semi-direct democracy involvingreiterated constitutional choice by the people and the territorialunits. In this respect, the Swiss federal process is uniquein comparison to other federal systems. An analysis of constitutionalreferenda and constitutional initiatives conducted from 1866to 1981 was undertaken in order to characterize the politicalbehavior of Swiss cantons concerning the referenda that havealtered the original Constitution of 1848. The behavior of thecantons may be explained by their sociopolitical features. Threegroups of cantons are distinguished by their pattern of behaviortoward proposed revisions of the federal Constitution. In addition,a comparison was made of the similarity and divergence of thecantons with the pattern of behavior of the entire federationin order to measure the degree of cohesion of the Swiss partnership.Strikingly, some of the cantons with a minority subculture weremore frequently in the winning coalition than were some cantonsthat share more of the characteristics of the majority culture.The Swiss federal process is found to strengthen nation-buildingby means of the continual adaptation, along with some innovation,of the original constitutional design on the part of the peopleas a whole and the cantons.     

Judicial policy‐making in Italy: The constitutional court

This study focuses on the Italian Constitutional Court, the newest and most prestigious addition to a judicial tradition that can be traced as far back as the Roman Empire. This court has indeed been an effective policy‐making body, particularly in matters of civil liberties and church‐state relations, as well as in compelling the legislative branch, where it has been so charged, to complete the drafting of the Constitution. The Court has faltered at times in defending its independence, and this account argues that life appointments might be a viable means of achieving the goal of a constitutional body that serves ‘nee spe nee metu’     

Do Constitutional Rights Make a Difference?

Although the question of whether constitutional rights matter is of great theoretical and practical importance, little is known about whether constitutional rights impact government behavior. In this article, we test the effectiveness of six political rights. We hypothesize that a difference exists between organizational rights—most notably, the rights to unionize and form political parties—and individual rights. Specifically, we suggest that organizational rights increase de facto rights protection because they create organizations with the incentives and means to protect the underlying right, which renders these rights self‐enforcing. Such organizations are not necessarily present to protect individual rights, which could make individual rights less effective. We test our theory using a variety of statistical methods on a data set of constitutional rights for 186 countries. The results support our theory: Organizational rights are associated with increased de facto rights protection, while individual rights are not.     

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.     

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.     

基本权利的冲突与平衡--对言论自由界限的个案分析

保护公民的基本权利是现代民主与法治国家的重要标志.但是宪法与法律所保护的基本权利发生冲突也时有发生,这也是目前许多国家面临的问题.为了达到基本权利的平衡,必须从国家的经济、政治、文化、伦理、道德等诸多因素出发,进行全面考量.