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Articles 1 - 21 of 21
Full-Text Articles in Law
Thirty-Five Years Of The 1988 Brazilian Constitution: Rights, Promises And Democratic Resilience, Luis Roberto Barroso, Patricia Perrone Campos Mello
Thirty-Five Years Of The 1988 Brazilian Constitution: Rights, Promises And Democratic Resilience, Luis Roberto Barroso, Patricia Perrone Campos Mello
Indiana Journal of Constitutional Design
This article provides a historical perspective on the moments anticipating the formation of Brazil’s 1988 Constitution, as well as a reflection on the future of Brazilian democracy. It is divided into four parts. Part I recounts the historical circumstances prior to the convening of the Constituent Assembly, which led to the 1988 Constitution. Part II analyzes the changes brought about by the new Constitution, especially regarding the three branches of government, as well as the evolutions in Brazilian constitutional theory over the period. Part III evaluates some of the critical moments experienced during its thirty-five years in force. The article …
Civic Education In Circumstances Of Constitutional Rot And Strong Polarization Rot, Linda C. Mcclain, James E. Fleming
Civic Education In Circumstances Of Constitutional Rot And Strong Polarization Rot, Linda C. Mcclain, James E. Fleming
Faculty Scholarship
This Essay argues that civic education is crucial to remedying what Jack Balkin, in The Cycles of Constitutional Time, diagnoses as “constitutional rot” in the United States. A twenty-first century civic education must meet challenges of polarization and growing diversity and inequality and equip people for forms of democratic participation necessary to the health of constitutional democracy. Some commentators have called the insurrection on January 6, 2021, a “Sputnik moment for teaching civics”—seeing a link between the whitesupremacist/conspiracy-theory mob’s actions and the failure to instill civic virtue in “We the People.” To be capable of spurring national reconciliation and renewal, …
Radbruch’S Formula Revisited: The ‘Lex Injusta Non Est Lex’ Maxim In Constitutional Democracies, Seow Hon Tan
Radbruch’S Formula Revisited: The ‘Lex Injusta Non Est Lex’ Maxim In Constitutional Democracies, Seow Hon Tan
Research Collection Yong Pung How School Of Law
According to German legal philosopher Gustav Radbruch, laws that are substantively unjust to an intolerable degree should not be regarded as legally valid, even if they were promulgated according to stipulated procedure. Radbruch’s Formula (as his position has been termed) contradicts the central tenet of legal positivism, according to which the existence of laws does not necessarily depend on their merit. While some legal positivists suppose that legal invalidity based on the content of particular laws is a central tenet of natural law theory, natural law theorists such as John Finnis opine that the lex injusta non est lex maxim …
Democracy Is Fragile: Extreme Partisan Polarization Has Become Rampant In The World, Suzin Win
Democracy Is Fragile: Extreme Partisan Polarization Has Become Rampant In The World, Suzin Win
GGU Law Review Blog
The status of democracy once seemed irrelevant in discussions of government in the United States and other long-established democracies. However, with the rise of extreme partisan polarization and the contempt that each party shows for the other, maintaining constitutional democracy is now a major concern for people in America. There is no longer any ideological overlap between the most conservative Democrats and the most liberal Republicans. In the words of Professor Daryl J. Levinson and Professor Richard H. Pildes of NYU School of Law, the “separation of powers” has been replaced by a “separation of parties.” The actions of the …
Bill 10, If Enacted, Will Install A Constitutional Dictatorship And Undermine Democracy In Zambia, Muna B. Ndulo
Bill 10, If Enacted, Will Install A Constitutional Dictatorship And Undermine Democracy In Zambia, Muna B. Ndulo
Southern African Journal of Policy and Development
Zambia has made several attempts to elaborate a democratic constitution that promotes good governance, inclusiveness, citizen participation, accountability, and the separation of powers between the three arms of government-parliament, the judiciary, and the executive. Success has been elusive largely because the processes used have been inappropriate for consensus building. The latest attempt, the Constitution Amendment Bill No. 10 of 2019, which came out of a ruling party dominated constitutional conference, is presently before parliament. The constitutional conference excluded key stake holders such as the main opposition party and civil society. The paper critically examines the contents of Bill 10 and …
Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu
Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu
Pace Law Review
This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, …
Democratic Conditions, Barry Sullivan
Democratic Conditions, Barry Sullivan
Faculty Publications & Other Works
According to many social scientists, democratic institutions are subject to much discontent and distrust today. Citizens sense the existence of a substantial disconnect between the rhetoric of representative democracy and its reality—what citizens believe their proper role to be and what the realities of our government and society allow them to be. More to the point, citizens of all stripes believe that those who “represent” them live lives quite different from their own, and that those representatives are not seriously interested in the perspectives, ideas, or well-being of most people. The nature and extent of this discontent raises serious questions …
Forty Years From Fascism: Democratic Constitutionalism And The Spanish Model Of National Transformation, Eric C. Christiansen
Forty Years From Fascism: Democratic Constitutionalism And The Spanish Model Of National Transformation, Eric C. Christiansen
Publications
This Article seeks to understand and evaluate core elements of the past promise and present reality of Spain’s transformation from Francoist dictatorship to modern European democracy. It does this by investigating the role of the 1978 Constitution and the distinctive Spanish Model of relatively peaceful constitutional transformation in facilitating the key legal elements of Spain’s transition to democracy. Following a review of important historical developments related to Spanish constitutionalism in Part I, this Article scrutinizes the process by which Spain transitioned to democracy in the 1970s. Part II focuses particularly on the dominant characteristics of the Spanish Model, which facilitated …
The Fragility Of Constitutional Democracy, Yasmin Dawood
The Fragility Of Constitutional Democracy, Yasmin Dawood
Maryland Law Review
Is the survival of constitutional democracy in America at serious risk? Given the actions of the Trump administration, and given the decline of democracy and concomitant rise of authoritarianism the world over, there is genuine cause for alarm. In light of these fears, it is worth remembering that the authors of The Federalist Papers were notably pessimistic about the survival chances of republican government. To what extent have their constitutional design innovations contributed to present woes, and conversely, to what extent will the Constitution ensure the survival of democracy? This Essay argues that while the design of the Constitution is …
Alternatives To Liberal Constitutional Democracy, David S. Law
Alternatives To Liberal Constitutional Democracy, David S. Law
Maryland Law Review
The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security.
Along these dimensions, the advantages …
The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay
The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay
Articles, Book Chapters, & Popular Press
Federalism is still a relevant and vital aspect of Canadian Constitutional Law. Although a lower profile aspect than the Charter of Rights and Aboriginal rights (and in common parlance less "sexy"), the division of powers continues to an important part of the work of the Supreme Court of Canada and part of what defines us as a nation. The author argues that the Supreme Court has pursued an increasingly contextualized approach to division of powers issues - one that abandons the arid legalism of earlier days, in favour of a broad social analysis of issues based on extensive use of …
The Emergency Powers Of The Judiciary, Or Necessity And German Constitutionalism, Jacqueline R. Hunsicker
The Emergency Powers Of The Judiciary, Or Necessity And German Constitutionalism, Jacqueline R. Hunsicker
Schmooze 'tickets'
No abstract provided.
Law, Liberty And The Rule Of Law (In A Constitutional Democracy), Imer Flores
Law, Liberty And The Rule Of Law (In A Constitutional Democracy), Imer Flores
Georgetown Law Faculty Publications and Other Works
In the hunt for a better--and more substantial--awareness of the “law,” The author intends to analyze the different notions related to the “rule of law” and to criticize the conceptions that equate it either to the sum of “law” and “rule” or to the formal assertion that “law rules,” regardless of its relationship to certain principles, including both “negative” and “positive” liberties. Instead, he pretends to scrutinize the principles of the “rule of law,” in general, and in a “constitutional democracy,” in particular, to conclude that the tendency to reduce the “democratic principle” to the “majority rule” (or “majority principle”), …
Book Review, Derek Kiernan-Johnson
Like A Hole In The Head, Lief H. Carter
Equality In Germany And The United States, Edward J. Eberle
Equality In Germany And The United States, Edward J. Eberle
Law Faculty Scholarship
No abstract provided.
The Incredible Shrinking Constitutional Theory: From The Partial Constitution To The Minimal Constitution, James E. Fleming
The Incredible Shrinking Constitutional Theory: From The Partial Constitution To The Minimal Constitution, James E. Fleming
Faculty Scholarship
Cass Sunstein and I have written fundamentally different books. My Securing Constitutional Democracy: The Case of Autonomy' puts forward a liberal Constitution-perfecting theory, one that aspires to interpret the American Constitution so as to make it the best it can be. Sunstein's Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America2 advances a minimalist critique of radical conservative constitutional theories of "fundamentalism" that call for restoring the "Constitution in exile."
"No Better Than They Deserve:" Dred Scott And Constitutional Democracy, Mark A. Graber
"No Better Than They Deserve:" Dred Scott And Constitutional Democracy, Mark A. Graber
Faculty Scholarship
No abstract provided.
Roger Williams On Liberty Of Conscience, Edward J. Eberle
Roger Williams On Liberty Of Conscience, Edward J. Eberle
Law Faculty Scholarship
No abstract provided.
The National Security Process And A Lawyer’S Duty: Remarks To The Senior Judge Advocate Symposium, James E. Baker
The National Security Process And A Lawyer’S Duty: Remarks To The Senior Judge Advocate Symposium, James E. Baker
Georgetown Law Faculty Publications and Other Works
September 11 changed so much about our lives and how we perceive national security. Harold Lasswell, in an earlier context, described the sharing of danger throughout society as the “socialization of danger,” which he wrote was a permanent characteristic of modern violence; but not for America until September 11. The socialization of danger has made ordinary citizens participants in the national security process in a way not previously experienced. In addition, it has brought relatively unknown federal agencies, like the Federal Emergency Management Agency and the Centers for Disease Control, to the forefront of national security planning and response. And …
A Comment On The Evolution Of Direct Democracy In Western State Constitutions, Patrick L. Baude
A Comment On The Evolution Of Direct Democracy In Western State Constitutions, Patrick L. Baude
Articles by Maurer Faculty
No abstract provided.