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Author: Russell Patrick Plato Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
In Wirzburger v. Galvin, Massachusetts citizens challenged the Massachusetts Constitution's Excluded Matters provision, which is a type of subject matter restriction that prohibits popularly initiated amendment of enumerated portions of the state constitution. Because plaintiffs could not show a suspect class, discriminatory intent, or a direct impact on speech, the court applied deferential forms of First Amendment and Equal Protection Clause review, and the challenge failed. This Note argues that the current framework used to evaluate subject matter restrictions, exemplified by Wirzurger, provides insufficient protection against the serious harms such restrictions create. Subject matter restrictions create differential amendability, which makes it harder for citizens to change some aspects of a constitution than to change others. Differential amendability is a serious harm that distorts the design of well-functioning constitutional amendment procedures and threatens longstanding principles of popular sovereignty. Furthermore, this distortion creates a significant risk that barriers to amendment are being employed, intentionally or otherwise, to entrench temporary political supermajorities against future constitutional change. This Note explores these risks and the possibility of controlling them through a federal constitutional analysis that draws on history, functional considerations, and existing voting rights case law. All three factors weigh in favor of engaging in a fundamental rights inquiry into subject matter restrictions. That inquiry might invalidate most subject matter restrictions, but its most significant contribution would be the cultivation of an interinstitutional dialogue over the possibilities and dangers of substantive restrictions on constitutional change at the state level.
Author: Russell Patrick Plato Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
In Wirzburger v. Galvin, Massachusetts citizens challenged the Massachusetts Constitution's Excluded Matters provision, which is a type of subject matter restriction that prohibits popularly initiated amendment of enumerated portions of the state constitution. Because plaintiffs could not show a suspect class, discriminatory intent, or a direct impact on speech, the court applied deferential forms of First Amendment and Equal Protection Clause review, and the challenge failed. This Note argues that the current framework used to evaluate subject matter restrictions, exemplified by Wirzurger, provides insufficient protection against the serious harms such restrictions create. Subject matter restrictions create differential amendability, which makes it harder for citizens to change some aspects of a constitution than to change others. Differential amendability is a serious harm that distorts the design of well-functioning constitutional amendment procedures and threatens longstanding principles of popular sovereignty. Furthermore, this distortion creates a significant risk that barriers to amendment are being employed, intentionally or otherwise, to entrench temporary political supermajorities against future constitutional change. This Note explores these risks and the possibility of controlling them through a federal constitutional analysis that draws on history, functional considerations, and existing voting rights case law. All three factors weigh in favor of engaging in a fundamental rights inquiry into subject matter restrictions. That inquiry might invalidate most subject matter restrictions, but its most significant contribution would be the cultivation of an interinstitutional dialogue over the possibilities and dangers of substantive restrictions on constitutional change at the state level.
Author: Yaniv Roznai Publisher: Oxford University Press ISBN: 0191081450 Category : Law Languages : en Pages : 368
Book Description
Can constitutional amendments be unconstitutional? The problem of 'unconstitutional constitutional amendments' has become one of the most widely debated issues in comparative constitutional theory, constitutional design, and constitutional adjudication. This book describes and analyses the increasing tendency in global constitutionalism to substantively limit formal changes to constitutions. The challenges of constitutional unamendability to constitutional theory become even more complex when constitutional courts enforce such limitations through substantive judicial review of amendments, often resulting in the declaration that these constitutional amendments are 'unconstitutional'. Combining historical comparisons, constitutional theory, and a wide comparative study, Yaniv Roznai sets out to explain what the nature of amendment power is, what its limitations are, and what the role of constitutional courts is and should be when enforcing limitations on constitutional amendments.
Author: Yaniv Roznai Publisher: Oxford University Press ISBN: 0198768796 Category : Law Languages : en Pages : 369
Book Description
Can constitutional amendments be unconstitutional? Using theoretical and comparative approaches, Roznai establishes the nature and scope of constitutional amendment powers by focusing on substantive limitations, looking at their prevalence in practice and the conceptual coherence of the very idea of limitations to constitutional amendment powers.
Author: Richard Albert Publisher: Bloomsbury Publishing ISBN: 1509908269 Category : Law Languages : en Pages : 679
Book Description
There is growing interest in constitutional amendment from a comparative perspective. Comparative constitutional amendment is the study of how constitutions change through formal and informal means, including alteration, revision, evolution, interpretation, replacement and revolution. The field invites scholars to draw insights about constitutional change across borders and cultures, to uncover the motivations behind constitutional change, to theorise best practices, and to identify the theoretical underpinnings of constitutional change. This volume is designed to guide the emergence of comparative constitutional amendment as a distinct field of study in public law. Much of the recent scholarship in the field has been written by the scholars assembled in this volume. This book, like the field it hopes to shape, is not comparative alone; it is also doctrinal, historical and theoretical, and therefore offers a multiplicity of perspectives on a subject about which much remains to be written. This book aspires to be the first to address comprehensively the new dimensions of the study of constitutional amendment, and will become a reference point for all scholars working on the subject. The volume covers all of the topics where innovative work is being done, such as the notion of the people, the trend of empirical quantitative approaches to constitutional change, unamendability, sunrise clauses, constitutional referenda, the conventional divide between constituent and constituted powers, among other important subjects. It creates a dialogue that cuts through these innovative conceptualisations and highlights scholarly disagreement and, in so doing, puts ideas to the test. The volume therefore captures the fierce ongoing debates on the relevant topics, it reveals the current trends and contested issues, and it offers a variety of arguments elaborated by prominent experts in the field. It will open the way for further dialogue.
Author: William N. Eskridge (Jr.) Publisher: Yale University Press ISBN: 0300120885 Category : Political Science Languages : en Pages : 591
Book Description
William Eskridge and John Ferejohn propose an original theory of constitutional law whereby, while the Constitution provides a vision, our democracy advances by means of statutes that supplement or even supplant the written Constitution.
Author: Robert F. Williams Publisher: Oxford University Press ISBN: 0190068809 Category : Languages : en Pages : 513
Book Description
The second edition of The Law of American State Constitutions provides complete coverage of the legal doctrines surrounding, applying to, and arising from American state constitutions and their judicial interpretation. Drawing on examples from specific states, Professors Williams and Friedman analyze the nature and function of state constitutions in contrast to the federal Constitution, including rights, separation of powers, issues of interpretation, and the processes for amendment and revision. In this edition, Williams and Friedman focus on recent developments, including the state constitutional dimensions of same-sex marriage and the reaction of state courts to U.S. Supreme Court decision making. This edition of The Law of American State Constitutions remains an important analytical tool that explains the unique character and the range of interpretive approaches to these constitutions. It covers the structure of state governments under state constitutions as well as the distribution of powers among the legislative, executive, and judicial branches. Like the first edition, this edition presents a complete picture of state constitutional law and the attributes and features that make this body of law so distinctive.
Author: Karolina M. Milewicz Publisher: Cambridge University Press ISBN: 1108835090 Category : Law Languages : en Pages : 373
Book Description
Constitutionalization of world politics is emerging as an unintended consequence of international treaty making driven by the logic of democratic power. The analysis will appeal to scholars of International Relations and International Law interested in international cooperation, as well as institutional and constitutional theory and practice.
Author: Russell Patrick Plato
Author: Russell Patrick Plato
Author: Yaniv Roznai
Author: Yaniv Roznai
Author: Richard Albert
Author: William N. Eskridge (Jr.)
Author: Stephen Gardbaum
Author: Robert F. Williams
Author: Alaska Legislative Affairs Agency
Author: Karolina M. Milewicz
Author: