Tragic Constitution: United States Democracy and Its Discontents

PMLA ◽  
2014 ◽  
Vol 129 (4) ◽  
pp. 708-726
Author(s):  
Peter Lancelot Mallios
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Theoretical Understanding ◽  
Constitutional System ◽  
Brazilian Theater

Tragedy is a recurrent subject in recent constitutional law scholarship. But this scholarship theorizes tragedy through a single narrow model, generally applies it to a limited conception of the domain of constitutional law, and ultimately conceives tragedy only as a liability rather than as a positive potentiality of constitutional practice. This essay critiques one theoretical understanding of tragedy and introduces three more, to argue for an open-ended praxis of pluralist tragic engagement with the United States Constitution that is necessary for the sober, mature, demystified, and deliberative functionality of the constitutional system. Each of these four models of tragedy is paired with a domain of constitutional law: Aristotle's model with interpretation, Hegel's with structure and institutions, the radical Brazilian theater director Augusto Boal's with performance and public effects, and Nietzsche's with cultural and educational accessibility.

James Bryce and the Australian Constitution

2015 ◽  
Vol 43 (2) ◽  
pp. 177-200
Author(s):  
Stephen Gageler
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Development ◽  
Practical Operation ◽  
Responsible Government ◽  
Shed Light

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

Constitutional Law in 1938–1939: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1938

1940 ◽  
Vol 34 (2) ◽  
pp. 249-283 ◽  
Author(s):  
Robert E. Cushman
Keyword(s):  
United States ◽  
Supreme Court ◽  
Constitutional Law ◽  
Recent Trend ◽  
The United States ◽  
Present Survey ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Constitutional Decisions ◽  
Constitutional System

The 1938 term of the Supreme Court brought substantial changes in its personnel. Mr. Justice Cardozo died on January 9, 1938. He was succeeded by Mr. Justice Frankfurter, who took office on January 30, 1939. On February 13, 1939, Mr. Justice Brandeis retired, and on April 17 Mr. Justice Douglas was appointed to fill his place. By the end of the term, therefore, four justices appointed by President Roosevelt had taken office. It is too early to appraise the results of these appointments upon the decisions and doctrines of the Court. One statement may be made, however, which throws some light upon the recent trend of judicial decisions. In preparing the present survey of the Court's decisions, some sixty cases were examined, all but one or two of them turning upon constitutional issues. In these sixty-odd cases, Mr. Justice McReynolds and Mr. Justice Butler, the two remaining members of the conservative “old guard,” dissented together twenty-five times. In several instances they were joined in dissent by Mr. Justice Roberts, and once or twice by the Chief Justice. In the main, however, they stood alone against a compact majority of six or seven justices. With the death of Mr. Justice Butler in the fall of 1939, Mr. Justice McReynolds stands like the boy on the burning deck amidst what obviously appears to him to be the imminent destruction of the old constitutional system.

The Process of Constitutional Amendment: Law, History, and Politics

1986 ◽  
Vol 49 ◽  
pp. 16-19 ◽  
Author(s):  
Walter Dellinger
Keyword(s):  
United States ◽  
Historical Context ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Amendment ◽  
The Political ◽  
Constitutional Change ◽  
Law And Policy ◽  
The Subject ◽  
Constitutional System

The first part of the seminar examined a mystery that reverberates through two centuries: how does a constitutional system of government, itself born of revolution, properly provide for its own revision — provide literally for its own reconstitution? We first considered the political and intellectual assumptions against which Article V of the United States Constitution — the amendment article — was drafted, and then looked briskly at the historical context in which the Constitution's twenty-six amendments have been adopted. With this as background, we addressed a range of issues concerning the law and policy of constitutional change that are currently the subject of lively dispute in America.

scholarly journals The Difficulty of Constitutional Amendment in Canada

2015 ◽  
Author(s):  
Richard Albert
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Amendment ◽  
Court Decisions ◽  
Constitutional Politics ◽  
Comparative Constitutional Law ◽  
Constitutional Conventions ◽  
Democratic Constitution

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. This article suggests that the Constitution of Canada may be even harder to amend. Canadian constitutional politics have proven the textual requirements for major constitutional amendment so far impossible to satisfy. But the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the text. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

Constitutional Law as a Bulwark against Tyranny: The American Experience

Moreana ◽  
2012 ◽  
Vol 49 (Number 189- (3-4) ◽  
pp. 89-116
Author(s):  
Christopher J. Riley
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Executive Power ◽  
Thomas More ◽  
Legal Proceedings ◽  
American Experience ◽  
Government Power ◽  
A Charge

This paper considers the legal proceedings in Thomas More’s trial on a charge of treason in contrast with certain specific protections and limitations as to power under the United States Constitution. King Henry VIII’s case against Thomas More demonstrates the risk to liberty when power is concentrated in one entity. A written constitution that limits government power and separates the exercise of judicial, legislative and executive power is the best protection against tyranny.

Some Causes and Consequences of the Bifurcated Treatment of Economic Rights and “Other” Rights Under the United States Constitution

1992 ◽  
Vol 9 (1) ◽  
pp. 141-170 ◽  
Author(s):  
Jonathan R. Macey
Keyword(s):  
United States ◽  
Constitutional Law ◽  
Freedom Of Expression ◽  
The United States ◽  
Federal Courts ◽  
United States Constitution ◽  
Freedom Of Religion ◽  
Economic Rights ◽  
The Past

The existence of a meaningful distinction between economic rights and “other rights” has been a cornerstone of constitutional law for the past sixty years. During this period, the federal courts consistently have taken the position that Congress is free to abuse citizens’ economic liberties, but is not permitted to interfere with such other, noneconomic “rights” as freedom of expression, freedom of assembly, and freedom of religion.

The Special Perils of Being Old and Sick in Prison

2020 ◽  
Vol 32 (5) ◽  
pp. 276-284
Author(s):  
William J. Jefferson
Keyword(s):  
United States ◽  
Health Care ◽  
Medical Care ◽  
Health Care Providers ◽  
The United States ◽  
United States Constitution ◽  
Care Providers ◽  
Medical Practitioners ◽  
Medical Needs ◽  
Access To Medical Care

The United States Supreme Court declared in 1976 that deliberate indifference to the serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain…proscribed by the Eighth Amendment. It matters not whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed—adequate prisoner medical care is required by the United States Constitution. My incarceration for four years at the Oakdale Satellite Prison Camp, a chronic health care level camp, gives me the perspective to challenge the generally promoted claim of the Bureau of Federal Prisons that it provides decent medical care by competent and caring medical practitioners to chronically unhealthy elderly prisoners. The same observation, to a slightly lesser extent, could be made with respect to deficiencies in the delivery of health care to prisoners of all ages, as it is all significantly deficient in access, competencies, courtesies and treatments extended by prison health care providers at every level of care, without regard to age. However, the frailer the prisoner, the more dangerous these health care deficiencies are to his health and, therefore, I believe, warrant separate attention. This paper uses first-hand experiences of elderly prisoners to dismantle the tale that prisoner healthcare meets constitutional standards.

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