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AMERICAN CONSTITUTIONAL LAW VOLUME II CIVIL RIGHTS AND LIBERTIES
American constitutional law, to paraphrase Charles Evans Hughes, is what the Supreme Court says it is. But of course it is much more than that. Constitutional law is constantly informed by numerous actors’ understandings of the meaning of the United States Constitution. Lawyers, judges, politicians, academicians, and, of course, citizens all contribute to the dialogue that produces constitutional law. Consequently, the Constitution remains a vital part of American public life, continuously woven into the fabric of our history, politics, and culture. Our goal in writing this textbook is to illustrate this premise in the context of the most salient and important provisions of the Constitution....
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Between Competition and Free Movement The Economic Constitutional Law of the European Community
This book is based on a PhD thesis written between September 1997 and December 2000 at the European University Institute in Florence, under the joint supervision of Giuliano Amato and Jean-Victor Louis. The viva took place on 5 March 2001. The examining board was composed of my supervisors, Gráinne de Búrca, Koen Lenaerts and Peter Oliver. I would like to thank them for their comments, criticism and suggestions. I am especially grateful to my supervisors, who were always of great help.
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DOES THE CONSTITUTION FOLLOW THE FLAG?
In 1899 the English writer Rudyard Kipling penned a poem entitled ‘‘The White Man’s Burden.’’ The phrase is now famous, though few probably know that Kipling was its author. Fewer still know the full title: ‘‘The White Man’s Burden: The United States and the Philippine Islands.’’ Kipling published the poem to implore the United States, which had just defeated Spain in a war, to assume control of Spain’s former colonies. By the end of the nineteenth century the United States had grown into an economic giant and had shown itself capable of vanquishing a once great European nation. Now,...
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Constructing Civil Liberties Discontinuities in the Development of American Constitutional Law
This is a book about the paths of constitutional development culminating in the U.S. Supreme Court’s landmark civil liberties and civil rights jurisprudence of the 1960s and 1970s. The roads to Mapp v. Ohio (1961) (search and seizure/privacy), University of California Board of Regents v. Bakke (1978) (affirmative action), Engle v. Vitale (1962) (separation of church and state), and other emblematic decisions marking the high tide of twentieth-century constitutional liberalism, I argue here, should be understood not as the issue of a single, linear and unidimensional path marked by the post–New Deal Court’s newfound willingness to protect “personal” (as opposed to “economic”) rights and liberties, and tracing out the...
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Regulatory Rights Supreme Court Activism, the Public Interest, and the Making of Constitutional Law
Supreme Court justices are an aging tribe. Their longevity is a product of the legal safeguards established to ensure their independence. They are entitled to serve (and keep on serving) during “good behavior,” which means (in practical effect) as long as they want to. And they invariably want to for a very long time. The justices now in place are an especially elderly lot. Then again, they, too, are mortal. Vacancies occasionally appear to be fi lled by comparatively youthful men and women whose nominations evoke heated debate....
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The Passivity of Law
Europe’s constitutional journey has not been a smooth one. On the contrary, it is not an exaggeration to say that Europe’s search for a constitution has turned out to be an opening of Pandora’s box: In the controversy surrounding the European Constitution, all kinds of quarrels and debates are cast on issues ranging from the enlargement of the European Union to its legal-political nature, from the legitimacy of the Union to its very identity, from the role the Union should play in the world to the way its actions influence daily life in its smallest regions....
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Republican Legal Theory The History, Constitution and Purposes of Law in a Free State
Republican legal theory is not new, not complicated and not very controversial, once it is understood; but neither is it very well known, to most lawyers and politicians. Republican doctrines, institutions and attitudes dominate the political and legal structures of North America and Western Europe, and recently also of South America and Eastern Europe, with growing influence in Asia and Africa, but the theoretical coherence and republican nature of most such political and legal advances go unremarked and unexamined....
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EU Foreign Relations Law Constitutional Fundamentals
This volume of essays reappraises what we call the constitutional fundamentals of EU foreign relations law. We use the term foreign relations law to cover all EU external relations law, including each of the three pillars of the existing European Union architecture. Indeed, one important factor that explains the publication of this volume at this particular time is the planned entry into force, in 2009, of the Treaty of Lisbon which creates a modified and much more unified framework for the whole of the EU’s foreign relations....
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MAKING CONSTITUTIONAL LAW
My previous work, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (Oxford University Press, 1994), examines Marshall's legal career before his appointment to the federal bench in 1961. The first chapter of this book describes Marshall's route to the Supreme Court from 1961 to 1967. The remainder of the book uses Marshall's experience on the Supreme Court as a vehicle for examining the Court as a whole during his tenure. Treating Marshall and his office as lenses through which we can view the Supreme Court, I locate the Court in the historical and political context of 1967 to 1991....
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WEAK COURTS, STRONG RIGHTS
This book brings together two of the important intellectual or theoretical issues of concern to students of comparative constitutional law as it has developed in the United States over the past decade. First, what is the proper role of courts in constitutional systems that generally comply with rule-of-law requirements? Second, what substantive rights do, should, or can constitutions guarantee? Should they protect second-generation social and economic rights and third-generation cultural and environmental rights, and if so, how, and in what venues? I argue that the comparative study of constitutions brings out underappreciated connections between the answers to these two questions....
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Sub-State Governance through Territorial Autonomy
Territorial autonomy is an important constitutional phenomenon, but because the sub-state entities that can be identified as territorial autonomies are relatively small, the phenomenon is often overlooked in systematic presentations of constitutional law. This is not to say that treatises of national constitutional law would completely lack information about territorial autonomies, but the internal functioning of substate entities, in particular, is not known to a wider audience.
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Law and Society Recent Scholarship
The federal government’s use of new data technologies, specifically knowledge discovery in databases (KDD) applications, for counterterrorism purposes presents a serious challenge to existing constitutional privacy protections. The book explores whether this practice infringes upon constitutional privacy rights in general and the right to information privacy in particular. It includes a review of privacy scholarship as well as a broad discussion of how constitutional privacy has been conceptualized by the U.S. Supreme Court and the U.S. Circuit Courts of in three types of privacy cases: First Amendment anonymous speech and association cases, Fourth Amendment privacy cases, and cases involving the emerging information privacy doctrine....
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The Making of a European Constitution Judges and Law Beyond Constitutive Power
The course of constitution-making within Europe has never run less smoothly. At the time of writing, French and Dutch electorates have inflicted a brutal blow upon the aspirations of European sentimentalists everywhere, rejecting the adoption of the draft constitutional treaty for Europe. As a consequence, the putative ‘European Constitution’ – so carefully drawn up by the European Constitutional Convention and so firmly approved by an Intergovernmental Conference – now languishes in limbo, a seemingly unloved and unlovable document, and simple testament to the failure of European parliamentarians and governments to force a true constitutive moment within Europe....
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THE NATIONAL COURTS’ MANDATE IN THE EUROPEAN CONSTITUTION
FORTY YEARS AFTER Van Gend en Loos and Costa v ENEL, it has become a truism to say that ‘every national court in the European Community is now a Community law court’.1 ‘Juges communautaires de droit commun, (..), ils sont les juges des litiges qui naissent de l’insertion de droit communautaire dans les ordres juridiques nationaux’.2 To put it in the words of the Court of First Instance, ‘when applying [Community law], the national courts are acting as Community courts of general jurisdiction’.3 The national courts are first in line to enforce and apply Community law within the Member States....
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The Constitution of Empire
Portions of this book appeared previously in Gary Lawson and Guy Seidman, The First ‘‘Establishment’’ Clause: Article VII and the Post- Constitutional Confederation, 78 Notre Dame L Rev 83 (2002); Gary Lawson and Guy Seidman, The Hobbesian Constitution: Governing without Authority, 95 Nw UL Rev 581 (2001); and Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal L Rev 853 (1988). We are grateful to the Notre Dame Law Review, the Northwestern Law Review, and the California Law Review for permission to reproduce those materials....
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The N-Directional Approach to Constitutive Laws
Tham khảo sách 'the n-directional approach to constitutive laws', kinh tế - quản lý, luật phục vụ nhu cầu học tập, nghiên cứu và làm việc hiệu quả
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AMERICAN CONSTITUTIONAL LAW VOLUME I SOURCES OF POWER AND RESTRAINT
Tham khảo sách 'american constitutional law volume i sources of power and restraint', kinh tế - quản lý, luật phục vụ nhu cầu học tập, nghiên cứu và làm việc hiệu quả
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COMMONWEALTH CARIBBEAN CONSTITUTIONAL LAW
Over the last 30–40 years, the former territories of the British Caribbean have been a laboratory in which the generally accepted ‘Westminster System’ is being adapted to suit the patterns of behaviour of the people of the area. Sir Fred Phillips has played an active part in some of these processes of adaptation and in other cases he has been an informed observer whose advice has been sought by the participants themselves.
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LAW AND IMPERIALISM: CRIMINALITY AND CONSTITUTION IN COLONIAL INDIA AND VICTORIAN ENGLAND
Th e literature on the relationship between Victorian England and imperial India is growing with a welcome contribution from Subaltern Study scholars. Th e latter increasingly emphasize the dynamics, the bilateral relationship between the two societies. Previous assumptions of the passive role of indigenous peoples in those processes have been overturned by varied empirical studies.2 Scholars are increasingly turning their gaze to questions of empire, colonialism and postcolonialism, in order to provide an understanding of imperialism, and to the dynamics of imperialist technologies to the colonial project....
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STUDIES IN LAW, POLITICS, AND SOCIETY
Earl Warren was Chief Justice for fifteen years, and left the Supreme Court almost forty years ago. Yet the constitutional scholarship inspired by the Warren Court continues to haunt both scholarly and popular understandings of the Supreme Court. Landmark liberal rulings during Warren’s tenure inspired seminal works in constitutional theory that introduced the terminology and theoretical constructs that many scholars continue to use as they try to understand the ongoing role of the Court in the political system....
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THE INFLUENCE OF AMERICAN THEORIES OF JUDICIAL REVIEW ON NORDIC CONSTITUTIONAL LAW
This book is based on my doctoral thesis from the University of Virginia in 2004. Such work cannot be completed without considerable assistance from others. My greatest debt of gratitude is to my thesis adviser, Barry Cushman, for his advice, patience and generosity. I also benefited from advice and comments from his colleagues John C. Harrison and A. E. Dick Howard. I am profoundly grateful to them all.
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Freedom of religion: in European constitutional and international case law
The Universal Declaration of Human Rights and the European Convention on Human Rights proclaim that everyone has the right to freedom of thought, conscience and religion, including freedom to manifest their religion or belief in worship, teaching, practice and observance. Even today, in our democratic societies too, this fundamental right is still sometimes restricted and meets with hostility and intolerance. Using concrete examples, the author compares and analyses the protection of the right to freedom of religion in the case-law of European constitutional courts and of the European Court of Human Rights of the Council of Europe, in order to...
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LAW & ANTHROPOLOGY International Yearbook for Legal Anthropology Volume 12
This new issue of Law and Anthropology encapsulates a selection of the most salient contributions presented at the International Expert Seminar on ‘Indigenous Peoples, Constitutional States and Treaties or other Constructive Arrangements between Peoples and States’, held in Seville under the auspices of the Universidad Internacional de Andalucía and the Agencia Española de Cooperación Internacional, on September 10-14, 2001. This meeting was inspired by the final recommendations of Miguel Alfonso Martínez’s Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations [Final Report, E/CN.4/Sub.2/1999/20]. The original core contributions of the conference are flanked in this volume by additional papers elaborated on the occasion of a homonimous International...
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THE DYNAMIC CONSTITUTION An Introduction to American Constitutional Law
Tham khảo sách 'the dynamic constitution an introduction to american constitutional law', kinh tế - quản lý, luật phục vụ nhu cầu học tập, nghiên cứu và làm việc hiệu quả
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Saving the Constitution from Lawyers: HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL MEANING
A few years ago, I read a lengthy article in a prominent law journal about the constitutional power to declare war. The article ably presented opposing views regarding the enduring debate between those who argue for congressional pre-eminence over war-related decisions and those who believe that the president possesses great war-making discretion. But, the author offered a startling categorical finding that he said “all scholars have missed”: namely, that “the Founders denied the President a veto over congressional decisions to wage war. . . ....
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Freedom's Law: The Moral Reading of the American Constitution
Ronald Dworkin argues that Americans have been systematically misled about what their Constitution is, and how judges decide what it means. The Constitution, he observes, grants individual rights in extremely abstract terms. The First Amendment prohibits the passing of laws that “abridge the freedom of speech”; the Fifth Amendment insists on “due process of law”; and the Fourteenth Amendment demands “equal protection of the laws” for all persons.
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Constitutional Politics in the Middle East
The first requirement for a comparative approach to constitutional politics—politics of the creation and reconstruction of political order—is to broaden its scope by shifting the focus of analysis from constitutionalism to constitution-making. I have argued elsewhere that constitution-making often has little to do with constitutionalism.1 Although it still retains its association with the original eighteenth-century idea of the constituent power of the representatives of the people, constitution- making has performed different functions in different historical periods, and it should be added, in different regions of the world in the same period....
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State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation
Tham khảo sách 'state liability in investment treaty arbitration: global constitutional and administrative law in the bit generation', kinh tế - quản lý, luật phục vụ nhu cầu học tập, nghiên cứu và làm việc hiệu quả
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Islamic Law and the State
This book deals with an Ayyubid-Mamluk Egyptian jurist's attempt to come to terms with the potential conflict between power, represented in the state, and authority, represented in the schools of law, particularly where one school enjoys a privileged status with the state. It deals with the history of the relationship between the schools of law, particularly in Mamluk Egypt, in the context of the running history of Islamic law from the formative period during which ijtihad was the dominant hegemony into the post-formative period during which taqlid came to dominate....
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SOCIAL RIGHTS AND MARKET FREEDOM IN THE EUROPEAN CONSTITUTION
This timely book addresses a number of enduring debates regarding the political and legal trajectory of the European Union’s evolving constitutional framework, namely the role and nature of social policy. On the one hand, the purse strings of the national welfare states are still firmly guarded by the Member States, which retain the power to tax and grant benefits.
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