Introduction

2021 ◽  
pp. 1-14
Author(s):  
Silvia Suteu
Keyword(s):  
Constitutional Change ◽  
Constitutional Interpretation ◽  
Constitutional Adjudication ◽  
Constitution Making

This chapter reviews the growing literature on constitutional unamendability and provides a unique analysis of unamendability in democratic constitutionalism. It looks at the democratic challenge of eternity clauses that goes beyond the old tension between constitutionalism and democracy. It also assesses unamendability in constitution-making and constitutional interpretation. This chapter reveals how eternity clauses are a far more ambivalent constitutional mechanism than hitherto understood, which has greater and more insidious potential for abuse. It offers a novel look at unamendability in democratic constitutions by placing the rise of eternity clauses in the context of other significant trends in recent constitutional practice, such as the rise of participatory constitutional change and the transnational embeddedness of constitution-making and constitutional adjudication.

Relinquishing Eternity

2021 ◽  
pp. 234-263
Author(s):  
Silvia Suteu
Keyword(s):  
Case Studies ◽  
Basic Structure ◽  
Constitutional Amendment ◽  
Constitutional Change ◽  
Judicial Interpretation ◽  
Constitutional Adjudication ◽  
The Impact ◽  
Constitutional Revision

This chapter investigates the possibility of repealing eternity clauses and renouncing doctrines of implicit unamendability. It looks at two case studies from Turkey and India, where backtracking from an eternity clause and basic structure doctrine were debated and ultimately rejected. It also explores the possibility of placing judicial doctrines of unamendability on formal constitutional footing and discusses the impact of this move on constitutional adjudication. This chapter examines the distinctions upon which unamendability repeal rests, such as between constitutional amendment and constitutional revision, between formal and informal amendments, and between amendment and revolution. It shows how pushing back against unamendability is very difficult through formal constitutional change and unlikely through judicial interpretation.

Book Review - David A. Strauss' The Living Constitution (2010)

2011 ◽  
Vol 12 (7) ◽  
pp. 1545-1552
Author(s):  
Artour Rostorotski
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Constitutional Change ◽  
Judicial Activism ◽  
Constitutional Interpretation

David Strauss' The Living Constitution addresses the issues of constitutional interpretation and judicial activism in the United States. The book supports the practice of Living Constitutionalism and attempts to demonstrate its advantages over Originalism. It presents general arguments as well as accounts of landmark decisions in order to demonstrate the superiority of Living Constitutionalism. The Living Constitution also argues for common law as the all-but-exclusive method for constitutional change in the modern United States. Overall, the book presents a well-organized and concise case for Living Constitutionalism.

I The Constitutional Court, 3 Forms and Methods of Judicial Reasoning

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
United States ◽  
The United States ◽  
Integrated System ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Judicial Reasoning ◽  
Constitutional Adjudication

Forms and methods of constitutional interpretation are less divisive in Italy than in the United States. In this chapter the interpretive style of the ItCC is described as “syncretistic” or “integrated” because the Court uses a combination of many different approaches to constitutional interpretation. The ItCC interprets the Constitution as a whole, as an integrated system, avoiding the fragmented interpretation of a single provision detached from the context and relationship with other principles, rules, and rights inscribed in the Constitution. This chapter also focuses on the concepts of reasonableness and proportionality, which are used synonymously in a way that is ancillary to many other constitutional principles, making them pervasive in constitutional adjudication. This chapter also studies the types of decisions of the constitutional court and their overall effects.

Toward a Constructive Constitutional History

2021 ◽  
pp. 223-236
Author(s):  
James E. Pfander
Keyword(s):  
Supreme Court ◽  
Federal Court ◽  
Synthetic Approach ◽  
Constitutional Interpretation ◽  
Constitutional History ◽  
Constructive Approach ◽  
Nineteenth And Twentieth Centuries ◽  
The Right ◽  
Constitutional Adjudication ◽  
The U.S

This chapter explores the lessons for the theory of constitutional adjudication that emerge from this book’s account of the meaning of cases and controversies in Article III. Proposing a constructive or synthetic approach to constitutional interpretation, the chapter urges the U.S. Supreme Court to substitute a litigable interest standard for the modern case-or-controversy rule. Such an approach would enable the Court to uphold the right of individuals to pursue uncontested claims as authorized by Congress and to continue to insist on adversary presentations in the disputes that parties present to federal court for resolution. The constructive approach advocated here differs from the position sometimes advanced by originalists in that it seeks to accommodate the lessons of the eighteenth, nineteenth, and twentieth centuries in formulating a measure of the limits of judicial power.

scholarly journals Responsive Constitutionalism

2019 ◽  
Vol 15 (1) ◽  
pp. 21-40
Author(s):  
Manuel J. Cepeda Espinosa
Keyword(s):  
Social Sciences ◽  
Institutional Design ◽  
Public Policies ◽  
Constitutional Court ◽  
Design And Implementation ◽  
The Social ◽  
Transformative Impact ◽  
Constitutional Adjudication ◽  
Constitution Making

Cepeda Espinosa reflects on how the social sciences, especially the theories of Philip Selznick on responsive law, influenced his approach to constitution making and institutional design, when he worked as presidential advisor to two Colombian presidents, as well as to constitutional adjudication, when he was a justice of the Constitutional Court. He also discusses how responsive constitutionalism has had a transformative impact in Colombia on the role of judges, the development of innovative legal notions, the design and implementation of public policies, and society at large.

The Idea of a Living Constitution

2003 ◽  
Vol 16 (1) ◽  
pp. 55-89 ◽  
Author(s):  
Aileen Kavanagh
Keyword(s):  
Judicial Power ◽  
Constitutional Interpretation ◽  
Main Argument ◽  
Incremental Change ◽  
Constitutional Adjudication ◽  
Case Basis ◽  
Practical Constraints

This article is a jurisprudential analysis of the idea of a ‘living Constitution’, as a common feature of the constitutional practice in democratic countries. The main argument of the article is that constitutional interpretation encompasses, rather than excludes the judicial power to develop and change the content of constitutional guarantees. The metaphor of the ‘living Constitution’ is appropriate to the nature of constitutional adjudication because it suggests gradual, incremental change on a case-by-case basis. While it is stressed that courts can and should be creative, this judicial creativity is subject to significant legal and practical constraints.

scholarly journals Mechanisms of Constitutional Control: A Preliminary Observation of the Ethiopian System

Afrika Focus ◽  
2007 ◽  
Vol 20 (1-2) ◽  
pp. 75-104 ◽  
Author(s):  
Getahun Kassa
Keyword(s):  
Preliminary Observation ◽  
Regional Level ◽  
Actual Practice ◽  
Constitutional Interpretation ◽  
Federal Level ◽  
State Institutions ◽  
Regional State ◽  
Constitutional Adjudication

Mechanisms of Constitutional Control: A preliminary observation of the Ethiopian system The present mechanism of constitutional adjudication in Ethiopia demonstrates unique features. The mechanism does not belong to any of the constitutional adjudication models operating in other countries. However, a well-developed system of constitutional adjudication is lacking in actual practice. The federal and regional state organs that exercise the power of constitutional control, i.e. the Council of Constitutional Inquiry and the House of Federation at the federal level and the Constitutional Interpretation Commissions, Council of Nationalities and Councils of Constitutional Inquiry at the regional level, are not functioning fully and, moreover, are not moving at equal pace. In some regional states, the institutions competent for constitutional control, though mentioned in the regional constitutions, are not even established yet. In other regions, these institutions have been established, but are not operating in practice. Besides, a challenge of judicial overlap is likely to emerge when the regional organs start to execute their task of constitutional control. Since no mechanism is devised to delimit the respective competences of the federal and state organs, overlap between federal and state institutions is inevitable. Furthermore, there is no clear guidance with regards to the role of the judiciary on matters that involve determination of constitutionality.

The Romanian Constitution and Civic Engagement

ICL Journal ◽  
2017 ◽  
Vol 11 (3) ◽  
Author(s):  
Paul Blokker
Keyword(s):  
Civic Engagement ◽  
Civic Participation ◽  
Early Years ◽  
Constitutional Reform ◽  
Constitutional Change ◽  
Constitutional Politics ◽  
Reform Processes ◽  
Constitution Making

AbstractThe article discusses civic engagement in Romanian constitutionalism. First, I briefly discuss theoretical dimensions of the relation between citizens and constitutional change. Second, the Romanian Constitution will be analyzed in terms of formal constitutional instruments of civic participation. Third, civic engagement in constitution-making and constitutional reform since 1991 will be studied. I will conclude that in the early years of Romanian democratic constitutionalism, citizens’ formal possibilities and actual capacities for engagement in constitutional politics have been severely limited. Civic participation has, however, become more promising and prominent in the 2003 and 2013 reform processes. The Romanian dual experience with the

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