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Series

2014

Boston College Law School

Constitutional Law

Articles 1 - 7 of 7

Full-Text Articles in Law

Reconstructing Constitutional Punishment, Paulo D. Barrozo Jul 2014

Reconstructing Constitutional Punishment, Paulo D. Barrozo

Boston College Law School Faculty Papers

Constitutional orders punish — and they punish abundantly. However, analysis of the constitutionality of punishment tends to be reactive, focusing on constitutional violations. Considered in this light, the approach to constitutional punishment rests on conditions of unconstitutionality rather than proactively on the constitutional foundations of punishment as a legitimate liberal-democratic practice. Reactive approaches are predominantly informed by moral theories about the conditions under which punishment is legitimate. In contrast, proactive approaches call for a political theory of punishment as a legitimate practice of polities. This Article integrates the reactive and proactive approaches by bridging the divide between moral and political theories ...


American Exceptionalism And Government Shutdowns: A Comparative Constitutional Reflection On The 2013 Lapse In Appropriations, Katharine G. Young May 2014

American Exceptionalism And Government Shutdowns: A Comparative Constitutional Reflection On The 2013 Lapse In Appropriations, Katharine G. Young

Boston College Law School Faculty Papers

The shutdown of the U.S. government after failure to pass a budget is exceptional by global standards. Other governments in mature constitutional democracies do not stop functioning, despite the difficulties in passing revenue bills. Yet shutdowns in America are increasing in occurrence, costliness and intensity. I argue that the Constitution is partly to blame, both because of what it creates and what it lacks. Drawing on a comparative perspective, I show how the constitutional emphasis on checks and balances contributes to the likelihood of shutdown, and how features that might forestall or resolve financial impasse are omitted.

After rejecting ...


Constitutional Amendment By Constitutional Desuetude, Richard Albert Jan 2014

Constitutional Amendment By Constitutional Desuetude, Richard Albert

Boston College Law School Faculty Papers

Scholars have shown that written constitutions may be informally amended in various ways, for instance by judicial interpretation, statute, or executive action. But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude. Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors. Though it is a species of informal amendment, constitutional desuetude possesses unique properties. Constitutional desuetude reflects the informal repeal of a constitutional provision as a result of the establishment of ...


The Structure Of Constitutional Amendment Rules, Richard Albert Jan 2014

The Structure Of Constitutional Amendment Rules, Richard Albert

Boston College Law School Faculty Papers

The structure of formal constitutional amendment rules has received little scholarly attention. Constitutional designers therefore have few academic resources to guide them in designing the rules of formal amendment — perhaps the most important part of any constitution. In this Article, I fill that void by creating a new classification of formal amendment rules based on my analysis of formal amendment rules in constitutional democracies. I explain and illustrate that formal amendment rules are conceptually structured in three tiers: (1) foundations, which either entrench or are silent on the distinction between constitutional amendment and revision; (2) frameworks, consisting of one of ...


Constructive Unamendability In Canada And The United States, Richard Albert Jan 2014

Constructive Unamendability In Canada And The United States, Richard Albert

Boston College Law School Faculty Papers

Democratic constitutions often entrench provisions against formal amendment. For example, republicanism is formally unamendable in Italy, as is federalism in Germany, political pluralism in Portugal, and secularism in Turkey. Neither the Canadian Constitution nor the United States Constitution entrenches a similar form of formal unamendability. But both entrench a peculiar form of unamendability that results from neither constitutional design nor constitutional law but from constitutional politics. Constructive unamendability derives from a political climate that makes it practically unlikely, though not theoretically impossible, to meet the high thresholds the constitution sets for formal amendment unless constitutional politics somehow perform heroics. Faced ...


Constitutional Disuse Or Desuetude: The Case Of Article V, Richard Albert Jan 2014

Constitutional Disuse Or Desuetude: The Case Of Article V, Richard Albert

Boston College Law School Faculty Papers

Article V of the United States Constitution is in decline and disuse. Studies of comparative formal amendment difficulty, the decelerating pace of Article V amendments, and the relative infrequency of Article V amendments in the modern era – the most recent having been ratified roughly one generation ago, and the next-most recent a generation earlier – confirm the impression that Article V’s federalist supermajority requirements make the United States Constitution one of the world’s most difficult to amend formally. The consequence of formal amendment difficulty has been to reroute political actors pursuing constitutional change from formal to informal amendment. The ...


Corporate Citizenship: Goal Or Fear?, Kent Greenfield Jan 2014

Corporate Citizenship: Goal Or Fear?, Kent Greenfield

Boston College Law School Faculty Papers

Discusses the conflicting opinions about corporate "citizenship." Should corporations be insulated from politics or a part of it?