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| Author | : Joel I. Colon-Rios |
| Publisher | : Routledge |
| Total Pages | : 222 |
| Release | : 2012 |
| Genre | : Law |
| ISBN | : 0415671906 |
It has been argued that democracy is protected and realized under traditional liberal constitutional forms through constitutional rights such as free speech, freedom of association and the right to vote. This book looks at the relationship between democracy and constitutions.
| Author | : Joel Colón-Ríos |
| Publisher | : Routledge |
| Total Pages | : 222 |
| Release | : 2012-06-14 |
| Genre | : Law |
| ISBN | : 1136319263 |
It has been frequently argued that democracy is protected and realized under constitutions that protect certain rights and establish the conditions for a functioning representative democracy. However, some democrats still find something profoundly unsettling about contemporary constitutional regimes. The participation of ordinary citizens in constitutional change in the world's most "advanced" democracies (such as the United States, Canada, and the United Kingdom) is weak at best: the power of constitutional reform usually lies in the exclusive hands of legislatures. How can constitutions that can only be altered by those occupying positions of power be considered democratically legitimate? This book argues that only a regime that provides an outlet for constituent power to manifest from time to time can ever come to enjoy democratic legitimacy. In so doing, it advances a democratic constitutional theory, one that combines a strong or participatory conception of democracy with a weak form of constitutionalism. The author engages with Anglo-American constitutional theory as well as examining the theory and practise of constituent power in different constitutional regimes (including Latin American countries) where constituent power has become an important part of the left’s legal and political discourse. Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power will be of particular interest to legal/political theorists and comparative constitutional lawyers. It also provides an introduction to the theory of constituent power and its relationship to constitutionalism and democracy.
| Author | : Mark Tushnet |
| Publisher | : Princeton University Press |
| Total Pages | : 288 |
| Release | : 2009-07-20 |
| Genre | : Political Science |
| ISBN | : 1400828155 |
Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.
| Author | : Allan C. Hutchinson |
| Publisher | : University of Toronto Press |
| Total Pages | : 220 |
| Release | : 2021 |
| Genre | : Constitutional law |
| ISBN | : 1487507933 |
Bold and unconventional, this book advocates for an institutional turn-about in the relationship between democracy and constitutionalism.
| Author | : Charles Howard McIlwain |
| Publisher | : The Lawbook Exchange, Ltd. |
| Total Pages | : 172 |
| Release | : 2005 |
| Genre | : Constitutional history |
| ISBN | : 1584775505 |
Examines of the rise of constitutionalism from the "democratic strands" in the works of Aristotle and Cicero through the transitional moment between the medieval and the modern eras.
| Author | : Joel I.. Cólon-Ríos |
| Publisher | : |
| Total Pages | : 294 |
| Release | : 2011 |
| Genre | : Constituent power |
| ISBN | : |
This dissertation is about the democratic legitimacy of constitutional regimes. It asks and provides an answer to the question of which conditions need to be met for a juridical system and the constitution that embodies it to be considered legitimate from a democratic perspective. In so doing, it explores the relationship between liberal constitutionalism, democracy, and constitutional change. It argues that there is an irreconcilable tension between democracy and liberal constitutionalism which is exemplified in the amendment procedures of most modern constitutions. These procedures are not only characterized by a lack of participatory mechanisms, but by the inclusion of a set of requirements that are more difficult to meet than those followed when the constitution was originally adopted. This, it is argued, signals that contemporary constitutional regimes suffer from an important deficit of democratic legitimacy. The dissertation approaches this problem from the theory of constituent power, until recentlyignored by Anglo-American constitutional theory. In virtue of its connections to democracy, constituent power provides two basic criteria to assess the democratic legitimacy of a constitutional regime: (1) ' A constitutional regime should have a democratic pedigree'; (2) ' a constitutional regime should be susceptible to democratic re-constitution '. Accordingly, a constitutional regime can only have a claim to democratic legitimacy if it is based on a conception of constitutionalism that does not approach constituent power as a threat. This conception of constitutionalism ('weak constitutionalism') mandates a permanently open fundamental law, one that is always susceptible to re-constitution through highly participatory procedures, such as constituent assemblies convened 'from below'. The dissertation also considers the practical implications of the two conditions of democratic legitimacy in the context of constitution-making and constitutional reform.
| Author | : Joel Colón-Ríos |
| Publisher | : Oxford University Press |
| Total Pages | : 368 |
| Release | : 2020-03-26 |
| Genre | : Law |
| ISBN | : 0191089095 |
Constituent power is the power to create new constitutions. Frequently exercised during political revolutions, it has been historically associated with extra-legality and violations of the established legal order. This book examines the relationship between constituent power and the law. It considers the place of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. Commentators and citizens have relied on the concept of constituent power to defend the idea that electors have the right to instruct representatives, to negate the doctrine of parliamentary sovereignty, and to argue that the creation of new constitutions must take place through extra-legislative processes, including primary assemblies open to all citizens. More recently, several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Constitutional courts have also at times employed constituent power to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have used it to defend the legality of attempts to transform the constitutional order through procedures not contemplated in the constitution's amendment rule, but considered participatory enough to be equivalent to 'the people in action', sometimes sanctioned by courts. Building on these findings, Constituent Power and the Law argues that constituent power, unlike sovereignty, should be understood as ultimately based on a legal mandate to produce a particular type of juridical content. In practice, this makes it possible for a constitution-making body to be understood as legally subject to popularly ratified substantive limits.
| Author | : Joel I. Colón-Ríos |
| Publisher | : |
| Total Pages | : 294 |
| Release | : 2008 |
| Genre | : Constituent power |
| ISBN | : |
This dissertation is about the democratic legitimacy of constitutional regimes. It asks and provides an answer to the question of which conditions need to be met for a juridical system and the constitution that embodies it to be considered legitimate from a democratic perspective. In so doing, it explores the relationship between liberal constitutionalism, democracy, and constitutional change. It argues that there is an irreconcilable tension between democracy and liberal constitutionalism which is exemplified in the amendment procedures of most modern constitutions. These procedures are not only characterized by a lack of participatory mechanisms, but by the inclusion of a set of requirements that are more difficult to meet than those followed when the constitution was originally adopted. This, it is argued, signals that contemporary constitutional regimes suffer from an important deficit of democratic legitimacy. The dissertation approaches this problem from the theory of constituent power, until recently ignored by Anglo-American constitutional theory. In virtue of its connections to democracy, constituent power provides two basic criteria to assess the democratic legitimacy of a constitutional regime: (1) A constitutional regime should have a democratic pedigree ; (2) a constitutional regime should be susceptible to democratic re-constitution . Accordingly, a constitutional regime can only have a claim to democratic legitimacy if it is based on a conception of constitutionalism that does not approach constituent power as a threat. This conception of constitutionalism ( weak constitutionalism ) mandates a permanently open fundamental law, one that is always susceptible to re-constitution through highly participatory procedures, such as constituent assemblies convened 'from below'. The dissertation also considers the practical implications of the two conditions of democratic legitimacy in the context of constitution-making and constitutional reform.
| Author | : Tamas Gyorfi |
| Publisher | : Edward Elgar Publishing |
| Total Pages | : 287 |
| Release | : 2016-09-30 |
| Genre | : Law |
| ISBN | : 1783473010 |
Ever since the Second World War, a new constitutional model has emerged worldwide that gives a pivotal role to judges. Against the New Constitutionalism challenges this reigning paradigm and develops a distinctively liberal position against strong constitutional review that puts the emphasis on epistemic considerations. The author considers whether the minimalist judicial review of Nordic countries is more in line with the best justification of the institution than the Commonwealth model that occupies a central place in contemporary constitutional scholarship.
| Author | : Mark Tushnet |
| Publisher | : Princeton University Press |
| Total Pages | : 288 |
| Release | : 2009-08-09 |
| Genre | : Law |
| ISBN | : 069114320X |
Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law.
