When backlashes and overrides do not scare: the power to review constitutional amendments and the case of Brazil's Supreme Court

2021 ◽  
Vol 8 (1/2) ◽  
pp. 80
Author(s):  
Nicola Tommasini ◽  
Pedro Arcain Riccetto ◽  
Yaniv Roznai
Keyword(s):  
Supreme Court ◽  
Constitutional Amendments

Part II Negotiating Constitutionalism, Ch.6 Law, Politics, and Constitutional Hegemony: the Supreme Court, jurisprudence, and demosprudence

2016 ◽  
Author(s):  
Baxi Upendra
Keyword(s):  
Supreme Court ◽  
Social Action ◽  
Socially Responsible ◽  
Indian Constitution ◽  
Constitutional Amendments ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Indian Supreme Court ◽  
Politics And Law ◽  
Constitutional Pluralism

This chapter examines constitutional hegemony in relation to three forms of prudence: legisprudence, jurisprudence, and demosprudence. It considers how constitutional pluralism has influenced the making and working of the Indian Constitution, especially through the dynamics of the Supreme Court of India. In particular, it explores the notion of adjudicatory leadership and the concept of demosprudence in the context of the Indian Supreme Court, along with the changing relation between demosprudence and jurisprudence. The article first looks at the demosprudence of the Supreme Court of India, before discussing the concepts of organisational adjudicatory leadership, hermeneutic adjudicatory leadership, Social Action Litigation, and socially responsible criticism. It also analyses the politics and law of constitutional amendments.

Constitutional crisis is accelerating in Venezuela

2016 ◽  
Keyword(s):  
Supreme Court ◽  
Political Violence ◽  
Constitutional Amendments ◽  
Content Type ◽  
National Assembly ◽  
The Supreme Court ◽  
Legislative Measures

Significance The Supreme Court (TSJ) has nullified a sweeping amnesty law passed by the National Assembly, and Maduro is assessing constitutional amendments to dissolve the Assembly in 60 days and void recently approved legislative measures. Among other counter-initiatives, the opposition Democratic Unity Movement (MUD) has passed a law changing the composition of the Supreme Court and the requirements for convening a recall referendum. Impacts Further constitutional machinations are inevitable as the PSUV and MUD seek to outmanoeuvre each other. Political violence is likely as both sides mobilise supporters (including rallies this weekend) in a context of lawlessness and impunity. The UNASUR-backed TRC will not defuse political tensions.

State Constitutional Law in 1934–35

1935 ◽  
Vol 29 (4) ◽  
pp. 610-630
Author(s):  
Charles G. Haines
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
Sole Purpose ◽  
The Supreme Court ◽  
The Subject ◽  
State Taxes ◽  
State Constitutional Law

Validity of Constitutional Amendments. The courts continue to scan with rather meticulous care the procedure for the adoption of constitutional amendments. Where the sole purpose of a proposed constitutional amendment under the initiative provisions of the constitution was to provide for the levy of a “syncrotax,” or a tax on the basis of gross receipts in lieu of all other state taxes, a petition with a short title reading “initiative measure providing for adoption of gross receipts act” was held fatally defective in view of the requirement that every initiative petition have a short title showing the nature of the petition and the subject to which it relates. But according to the supreme court of Florida, a proposal to amend the constitution need not have a title, need not be read on different days or at different times, and need not be concurred in by the governor. And the dissenting justices protested that the majority failed to uphold the requirement that a proposed amendment shall be entered upon the respective journals of the two houses with the yeas and nays, showing a three-fifths vote in favor of the amendment. There must be, however, a violation of express constitutional requirements for the courts to interfere with the procedure in the adoption of amendments.

The Court Redeemed

1979 ◽  
Author(s):  
J. Harvie Wilkinson
Keyword(s):  
Civil War ◽  
Civil Rights ◽  
Supreme Court ◽  
The South ◽  
Constitutional Amendments ◽  
White House ◽  
True Story ◽  
Dred Scott ◽  
The Supreme Court ◽  
Emancipation Proclamation

Everyone understands that Brown v. Board of Education helped deliver the Negro from over three centuries of legal bondage. But Brown acted to emancipate the white South and the Supreme Court as well. Not that the South immediately recognized Brown as a deliverance from economic stagnation, moral debility, and sectional isolation, a deliverance that would end with the installment of one of its own in the White House by 1977. And the Court only barely acknowledged in Brown the full weight of history from which it was itself redeemed. Indeed, the true story of the Court’s own past attitude toward the black man remains one of the deafening silences of the Brown opinion. For half a century after the Civil War, the Supreme Court had, in effect, told the Negro to seek solace not in the law of the land but, like Stephen Foster’s Old Black Joe, in cotton fields, mournful song, darkey friends, and the hereafter. It was President Lincoln who issued the Emancipation Proclamation and Congress that moved to secure Negro rights in the South with no fewer than three Constitutional amendments and four Civil Rights acts shortly after the Civil War. Throughout this period, the Court was eyed distrustfully. The Radical Republicans were “aware of the power the Court could exercise. They were for the most part bitterly aware of it, having long fought such decisions as the Dred Scott case.” Radicals such as Congressman Thaddeus Stevens of Pennsylvania probably “had little hope that the Court would play a role in furthering their long range objectives.” What hopes they did have centered on those sections of the post-Civil War amendments permitting Congress to act through “appropriate legislation.” In 1865 the Radicals sensed a long-awaited opportunity. Many a proud southern planter was left to his ashes and rubble, to scorched earth and wistful dreams. “The Old South,” wrote one observer in 1870, “has gone ‘down among the dead men’. . . . For that vanished form of society there can be no resurrection. . . .”

Zimbabwean government will try to entrench its control

2020 ◽  
Keyword(s):  
Supreme Court ◽  
Foreign Investment ◽  
Vice President ◽  
Economic Crises ◽  
Constitutional Amendments ◽  
Content Type ◽  
Parliamentary Oversight

Significance Chamisa’s call comes amid worsening political and economic crises and rising public frustration with President Emmerson Mnangagwa and the ruling ZANU-PF. Meanwhile, Mnangagwa’s government has proposed constitutional amendments that will significantly bolster the presidency and undermine independent and parliamentary oversight of the executive. Impacts With China rebuffing Harare’s recent demands for a bailout, Mnangagwa’s government will be ever more reliant on renewed Western goodwill. A recent Supreme Court judgement on unpaid government debts will further dissuade foreign investment and undermine local businesses. Recent divorce court allegations will further undermine Vice-President Constantino Chiwenga’s standing among Western partners.

Public Law in the State Courts in 1927–1928

1928 ◽  
Vol 22 (3) ◽  
pp. 617-636
Author(s):  
Robert E. Cushman
Keyword(s):  
Supreme Court ◽  
Chief Executive ◽  
Federal Courts ◽  
The State ◽  
Constitutional Amendment ◽  
Special Session ◽  
Constitutional Amendments ◽  
State Supreme Court ◽  
The People ◽  
The Supreme Court

Special Session—Power to Propose Constitutional Amendments Not Included in Governor's Call. In 1926 a special session of the Pennsylvania legislature proposed an amendment to the state constitution in the form of a new section, although the subject-matter of this amendment was not referred to in the governor's proclamation calling the session. In a taxpayer's action to prevent the submission to the people of this proposal it was alleged that the proceeding was in violation of Art. 3, Sec. 25, of the constitution of Pennsylvania, which provides: “When the General Assembly shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session.” In Sweeney v. King the state supreme court held that a resolution proposing a constitutional amendment is not “legislation” within the meaning of this clause. In reaching this conclusion it relied heavily upon its earlier decision in Commonwealth v. Griest in which it had held that a constitutional amendment is not “legislation” which must be submitted to the chief executive for his approval, a doctrine well established both in state and federal courts. An opposite result on the principal question was reached by the supreme court of California in People v. Curry. Here the restriction upon a called session of the legislature was held to preclude the proposal of a constitutional amendment. The purpose of the restriction was declared to be to regulate the duration of the session and keep down expenses, and this purpose, it was held, ought not to be defeated by a strained or highly technical interpretation.

scholarly journals Constitutional Court 1995 – 2012: How did the Cases reach the Court, Why did the Court refuse to consider Some of Them, and How Often did the Court Invalidate Laws and Actions?

2017 ◽  
Vol 16 (4) ◽  
pp. 45
Author(s):  
IM Rautenbach
Keyword(s):  
Supreme Court ◽  
Customary Law ◽  
Direct Access ◽  
Constitutional Court ◽  
Constitutional Amendments ◽  
Seventeenth Amendment ◽  
Exclusive Jurisdiction ◽  
The Supreme Court ◽  
Executive Action ◽  
Court Of Appeal

The purpose of this article is to contribute data for the purposes of debates on how effectively the Constitutional Court performed its functions between 1995 and 2012. The cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written. However, it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters. The figures contained in this article could at a later stage be used to determine what effect this amendment might have had on the functioning of the Court. it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters, will commence in the course of the second half of 2013. The figures contained in this article could at a later stage also be used to determine what effect this amendment might have had on the functioning of the Court. Between 1995 and the end of 2012, the Constitutional Court considered 464 applications for review. The ways in which these 464 applications reached the Court were as follows: 35 referrals in terms of the interim Constitution;21 applications and referrals on matters within the exclusive jurisdiction of the Court;78 applications for confirmations of parliamentary or provincial laws and actions of the President;45 applications for direct access to the Constitutional Court;101 applications for leave to appeal against judgments of the Supreme Court of Appeal;150 applications for leave to appeal against judgments of other Courts;34 applications concerning previous judgments of the Court and other matters. The Constitutional Court refused to consider applications in 103 instances and considered the merits of applications in 361 instances. The number of refusals per category is as follows: 7 refusals in respect of 35 referrals in terms of the interim Constitution;no refusals in respect of 21 applications and referrals on matters within the exclusive jurisdiction of the Court;7 refusals in respect of 78 applications for confirmations of parliamentary of provincial laws and actions of the President;34 refusals in respect of 45 applications for direct access to the Constitutional Court;21 refusals in respect of 101 applications for leave to appeal against judgments of the Supreme Court of Appeal;34 refusals in respect of 150 applications for leave to appeal against judgments of other Courts;34 applications concerning previous judgments of the Court and other matters. The Constitutional Court invalidated in 192 instances legal rules and actions of organs of state and individuals. These invalidations were done in respect of 464 applications for review in all the categories and they were done in respect of 361 instances in which the Court reviewed the merits of applications. 41.39% of the 464 applications received were invalidated. 53.18% of the applications of the merits were considered, was invalidated. The invalidations in the different categories rules and action were as follows. In respects of: Draft constitutional texts – 3 refusals to certify out of 5 texts considered (60%);Constitutional amendments – 1 invalidation out of 6 considered (16.66%);Acts of Parliament – 85 invalidations out of 165 considered (51.51%);Bills of Parliament – 0 invalidations out of 2 considered (0%);Acts of Provinces – 6 invalidations out of 11 considered (54.54%);Bills of Provinces – 1 invalidations out of 2 considered (50%);Local government legislative measures – 2 invalidations out of 5 considered (40%);Common law and customary law – 8 invalidations out of 11 considered (72.72%);Administrative and executive action – 45 invalidations out of 71 considered (63,38%);Court discretionary action – 14 out of 35 considered (40%);Action in respect of delict and contract – 7 invalidations out of 14 considered (50%).

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