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- Constitutional comparativism (2)
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Articles 1 - 8 of 8
Full-Text Articles in Law
Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner
Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner
Journal Articles
It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the …
Foreword: The New Frontier Of State Constitutional Law, James A. Gardner, Jim Rossi
Foreword: The New Frontier Of State Constitutional Law, James A. Gardner, Jim Rossi
Journal Articles
In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance. This Symposium, organized around the theme of Dual Enforcement of Constitutional Norms, provides the occasion for leading scholars on state constitutional law to take a fresh look at their subject by adopting a vantage point outside of the individualized …
Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero
Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero
Journal Articles
In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all …
Asians, Gay Marriage, And Immigration: Family Unification At A Crossroads, Victor C. Romero
Asians, Gay Marriage, And Immigration: Family Unification At A Crossroads, Victor C. Romero
Journal Articles
Family unification has long been a significant component of U.S. immigration policy, and the Asian Pacific American (APA) community has long been a champion of laws that strengthen America's commitment to this goal. The recent emergence of same-gender marriages among state and local governments has caused society to consider more closely its definition of the family, challenging the traditional notion that only civil unions between heterosexuals should be celebrated. But because U.S. immigration law does not include a gay or lesbian partner within its statutory definition of spouse, binational same-gender couples may not legally remain in the country together, even …
Roper V. Simmons And Our Constitution In International Equipoise, Roger P. Alford
Roper V. Simmons And Our Constitution In International Equipoise, Roger P. Alford
Journal Articles
In Roper v. Simmons, the Court unequivocally affirms the use of comparative constitutionalism to interpret the Eighth Amendment. It does not, however, provide an obvious theoretical basis to justify the practice. This Article searches for a theory to explain the comparativism in Roper using the theories advanced in the author's previous scholarship. It concludes that of the colorable candidates, natural law constitutionalism is the most plausible explanation, with the attendant problems associated therewith. The Article concludes with an analysis of the possible ramifications of the Court's comparative approach, suggesting that it may be pursuing a Constitution that is in international …
In Search Of A Theory For Constitutional Comparativism, Roger P. Alford
In Search Of A Theory For Constitutional Comparativism, Roger P. Alford
Journal Articles
Constitutional comparativism - the notion that international and foreign material should be used to interpret the U.S. Constitution - is gaining currency. Yet proponents of this practice rarely offer a firm theoretical justification for the practice. This Article contends that constitutional comparativism should be examined from the perspective of constitutional theory. The use of comparative and international material must be deemed appropriate or inappropriate based on a particular judge's interpretive mode of constitutional analysis. The Article presents four classic constitutional theories - originalism, natural law, majoritarianism, and pragmatism - and addresses the propriety of constitutional comparativism under each theory. This …
Democracy Without A Net? Separation Of Powers And The Idea Of Self-Sustaining Constitutional Constraints On Undemocratic Behavior, James A. Gardner
Democracy Without A Net? Separation Of Powers And The Idea Of Self-Sustaining Constitutional Constraints On Undemocratic Behavior, James A. Gardner
Journal Articles
The United States Constitution is designed to achieve good government by relying on two distinct systems: a primary system that achieves good governance through democratic electoral accountability; and a set of self-sustaining structural backup systems designed for situations in which the democratic system fails, and which operate by limiting the ability of bad rulers to do serious harm to the public good. A key premise of this kind of dual structural arrangement is that effective backup systems must operate independently of primary democratic systems; because they are needed precisely when democratic mechanisms have failed, they cannot depend for their success …
Book Review, Mark C. Modak-Truran
Book Review, Mark C. Modak-Truran
Journal Articles
RELIGION ON TRIAL makes the historical debates about the religion clauses accessible to a broad audience. In addition, it properly links issues of free exercise of religion to issues about fundamental rights in a manner that is usually missed by legal scholars and political scientists. Consequently, this book would be a good addition to undergraduate, graduate, and law school courses on the religion clauses or on law and religion.