Perfecting the Constitution

Perfecting the Constitution PDF

Author: Darren Patrick Guerra

Publisher: Lexington Books

Published: 2013-06-10

Total Pages: 253

ISBN-13: 0739183869

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He who can change the Constitution controls the Constitution. So who does control the Constitution? The answer has always been: “the people.” The people control the Constitution via the Article V amending process outlined in the Constitution itself. Changes can only be made through Article V and its formal procedures. Article V has always provided a means of perfecting the Constitution in an explicit, democratically authentic, prudent, and deliberative manner. In addition to changing the Constitution Article V also allowed the people to perfect and preserve their Constitution at the same time. In recent years Article V has come under attack by influential legal scholars who criticize it for being too difficult, undemocratic, and too formal. Such scholars advocate for ignoring Article V in favor of elite adaptation of the Constitution or popular amendment through national referendums. In making their case, critics also assume that Article V is an unimportant and expendable part of the Constitutional structure. One notable scholar called the Constitution “imbecilic” because of Article V. This book shows that, to the contrary, Article V is a unique and powerful extension of the American tradition of written constitutionalism. It was a logical extension of American constitutional development and it was a powerful tool used by the Federalists to argue for ratification of the new Constitution. Since then it has served as a means of “perfecting” the US Constitution for over 200 years via a wide range of amendments. Contrary to contemporary critics, the historical evidence shows Article V to be a vital element in the Constitutional architecture, not an expendable or ancillary piece. This book defends Article V against critics by showing that it is neither too difficult, undemocratic, nor too formal. Furthermore, a positive case is made that Article V remains the most clear and powerful way to register the sovereign desires of the American public with regard to alterations of their fundamental law. In the end, Article V is an essential bulwark to maintaining a written Constitution that secures the rights of the people against both elites and themselves.

Constitutional Processes and Democratic Commitment

Constitutional Processes and Democratic Commitment PDF

Author: Donald L. Horowitz

Publisher: Yale University Press

Published: 2021

Total Pages: 284

ISBN-13: 0300254369

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Enhancing prospects for democracy is an important objective in the process of creating a new constitution. Donald L. Horowitz argues that constitutional processes ought to be geared to securing commitment to democracy by those who participate in constitutional processes. Using evidence from numerous constitutional processes, he makes a strong case for a process intended to increase the likelihood of a democratic outcome. He also assesses tradeoffs among various process attributes and identifies some that might impede democratic outcomes.

The Arc of Due Process in American Constitutional Law

The Arc of Due Process in American Constitutional Law PDF

Author: E. Thomas Sullivan

Publisher: Oxford University Press

Published: 2013-03-27

Total Pages: 240

ISBN-13: 0199990816

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Topics such as military tribunals, same-sex marriage, informative privacy, reproductive rights, affirmative action, and states' rights fill the landscape of contemporary legal debate and media discussion, and they all fall under the umbrella of the Due Process Clauses of the United States Constitution. However, what is not always fully understood is the constitutional basis of these rights, or the exact list of due process rights as they have evolved over time through judicial interpretation. In The Arc of Due Process in American Constitutional Law, Sullivan and Massaro describe the intricate history of what are currently considered due process rights, and maintain that modern constitutional theory and practice must adhere to it. The authors focus on the origins and contemporary uses of due process principles in American constitutional law, while offering an overarching description of the factors or normative concepts that allow courts to invalidate a government action on the grounds of due process. They also analyze judicial interpretations and expressions as a key manner and perhaps the most powerful source of how due process has taken form in the United States. In the process of charting this arc, the authors describe the judicial analysis of rights within each category applying an illustrative list, and identify several fundamental norms that span these disparate threads of due process and the most salient principles that animate due process doctrine.

Constitutional Construction

Constitutional Construction PDF

Author: Keith E. Whittington

Publisher: Harvard University Press

Published: 2009-06-01

Total Pages: 315

ISBN-13: 0674045157

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This book argues that the Constitution has a dual nature. The first aspect, on which legal scholars have focused, is the degree to which the Constitution acts as a binding set of rules that can be neutrally interpreted and externally enforced by the courts against government actors. This is the process of constitutional interpretation. But according to Keith Whittington, the Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. Whittington characterizes this process, by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution, as one of construction as opposed to interpretation. Whittington goes on to argue that ambiguities in the constitutional text and changes in the political situation push political actors to construct their own constitutional understanding. The construction of constitutional meaning is a necessary part of the political process and a regular part of our nation's history, how a democracy lives with a written constitution. The Constitution both binds and empowers government officials. Whittington develops his argument through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency.

Accountability, Impeachment and the Constitution

Accountability, Impeachment and the Constitution PDF

Author: Chris Monaghan

Publisher: Routledge

Published: 2022-06-16

Total Pages: 228

ISBN-13: 1000597466

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This book sets out and explores the case for a modernised impeachment process for the United Kingdom. The work examines the present law and history of impeachment in the United Kingdom, which today is widely regarded as having fallen into desuetude and its procedures inappropriate for modern conditions. It discusses how impeachment operates in two countries, the United States and Denmark, selected respectively for their marked differences from and similarities to the United Kingdom’s political and constitutional system, for the purposes of illumination and possible lessons for a new impeachment process. The book seeks to provide a balanced and independent examination of the case for this, concluding that it would have a valuable role to play in the future development of the United Kingdom’s system of politics and government. It concludes by setting out a detailed model for the structure, working and effect of impeachment. The book will be of interest to students, academics and policy-makers working in the areas of constitutional law and politics.

Interpreting the Constitution

Interpreting the Constitution PDF

Author: Harry H. Wellington

Publisher: Yale University Press

Published: 1992-07-29

Total Pages: 212

ISBN-13: 9780300056723

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How does the Supreme Court work? Is there something undemocratic about having unelected judges overturn laws passed by elected legislators? How can a brief, two-hundred-year old constitution continue to provide the fundamental law for governing the United States? In this book a prominent legal scholar explores these questions with unusual clarity. Harry H. Wellington discusses judicial review (the process by which the court decides whether laws are valid) and the interpretive role the court plays in constitutional regulation and the resolution of individual disputes. Written in an engaging and accessible manner, the book offers fascinating examples of the court at work, in particular showing how it has addressed one of the most controversial political and judicial issues of our time--abortion. Harry H. Wellington takes a frank and provocative look at the process of adjudication, showing how it incorporates and shapes public values and mores as they change from one generation to the next. He explains why democracies can tolerate judicial review by nonelected officials and he refutes the politically popular doctrine of "original intent" and explains why those who interpret the Constitution must be responsive to precedent and process. Wellington also shows how the American political system allows the public to respond to the Court's decisions on such strongly debated issues as abortion. Although he argues for the retention of Roe v. Wade, Wellington points out that the Court makes mistakes, and he asserts that institutions, groups, and individuals sometimes have an obligation to contest the court's readings and its authority. This often noisy dialogue, says Wellington, is necessary to make judicial regulation compatible with the democratic ideology on which the United States is based.

A Practical Guide to Constitution Building

A Practical Guide to Constitution Building PDF

Author: Winluck Wahiu

Publisher:

Published: 2011

Total Pages:

ISBN-13:

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"A Practical Guide to Constitution Building provides an essential foundation for understanding constitutions and constitution building. Full of world examples of ground-breaking agreements and innovative provisions adopted during processes of constitutional change, the Guide offers a wide range of examples of how constitutions develop and how their development can establish and entrench democratic values. Beyond comparative examples, the Guide contains in-depth analysis of key components of constitutions and the forces of change that shape them. The Guide analyzes the adoption of the substantive elements of a new constitution by looking at forces for the aggregation or dissemination of governmental power, and forces for greater legalization or politicization of governmental power, and examining how these forces influence the content of the constitution. It urges practitioners to look carefully at the forces at play within their individual contexts in order to better understand constitutional dynamics and play a role in shaping a constitution that will put into place a functioning democratic government and foster lasting peace."--

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