Public Utilities. Constitutional Law. Scope of Judicial Review of "Confiscatory" Rate Orders

1942 ◽  
Vol 42 (5) ◽  
pp. 870
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Public Utilities

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.

The judicial review of legality

2021 ◽  
Author(s):  
Natalie R. Davidson ◽  
Leora Bilsky
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
New Model ◽  
Substantive Content ◽  
Comparative Constitutional Law ◽  
Recent Developments ◽  
Relationship Of

In comparative constitutional law, the various models of judicial review require courts to examine either the substantive content of legislation or the procedure through which legislation was passed. This article offers a new model of judicial review – ‘the judicial review of legality’ – in which courts review instead the forms of law. The forms of law are the ways in which law communicates its norms to the persons who are meant to comply with them, and they include generality, clarity, avoidance of contradiction, and non-retroactivity. Drawing on recent writing on the jurisprudence of Lon Fuller, this article argues that Fuller’s linking of the forms of law to a relationship of reciprocity between government and governed can ground judicial review and that such review provides a missing language to address important legislative pathologies. Moreover, through an analysis of recent developments in Israel, the article demonstrates that the judicial review of legality targets some of the key legal techniques of contemporary processes of democratic erosion which other models of judicial review struggle to address, all the while re-centring judicial review on the lawyer’s craftsmanship and thus reducing problems of court legitimacy. This article therefore offers a distinctive and normatively appealing way for courts to act in troubling times.

scholarly journals Constitutional Law: Due Process: Right of Alien Enemy to Judicial Review of Deportation Proceeding

1949 ◽  
Vol 47 (3) ◽  
pp. 404
Author(s):  
Robert P. Griffin
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Due Process

DEMOCRATIC OBJECTIONS TO STRUCTURAL JUDICIAL REVIEW AND THE JUDICIAL ROLE IN CONSTITUTIONAL LAW

2010 ◽  
Vol 60 (1) ◽  
pp. 109-135 ◽  
Author(s):  
Adrienne Stone
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Judicial Role

Part IV Separation of Powers, Ch.22 The Administrative and Regulatory State

2016 ◽  
Author(s):  
Somanathan TV
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Administrative State ◽  
Regulatory State ◽  
Judicial Decisions ◽  
Regulatory Bodies ◽  
Regulatory Functions ◽  
Constitutional Jurisprudence

This chapter explores how India’s constitutional law has addressed the administrative and regulatory State as it has evolved outside the traditional branches of government, and how judicial review is exercised over it. It begins by providing a background on constitutional issues relating to the administrative State as it functions within the executive branch, before turning to a discussion of the major regulatory bodies that either are explicitly called ‘regulatory’ or exercise regulatory functions. It then considers the constitutional position of the administrative and regulatory State based on judicial decisions and on the Indian Constitution. It also examines the conceptual underpinnings of, and justification for, the regulatory State, along with some specific concerns arising from the regulatory State such as legal uncertainty and excessive delegation. The chapter concludes by analysing some of the issues associated with the emerging constitutional jurisprudence on the regulatory State.

From promise to retrenchment: On the changing landscape of Israeli constitutionalism

2020 ◽  
Author(s):  
Adam Shinar ◽  
Barak Medina ◽  
Gila Stopler
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Israeli Society ◽  
Individual Rights ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Comparative Constitutional Law ◽  
Constitutional Revolution

Abstract Israeli constitutionalism has long interested comparative constitutional law scholars, whether due to its geopolitical status, the Israeli–Palestinian conflict, its internal divisions, or its unique constitutional evolution. Unlike many other countries that have ratified constitutions after the Second World War, Israel was established as a parliamentary democracy, with an explicit intention to ratify a constitution at a later stage. This did not happen. Instead, it underwent a “constitutional revolution” announced by its Supreme Court. Fitting a revolution, much of comparative constitutional law scholarship has focused on this pivotal moment. The articles in this symposium depart from the scholarship focused on that moment. They seek to critically understand what has become of Israeli constitutionalism in the past decade. In this introduction, we highlight several transformations and features which we believe are essential if one is to understand the extant constitutional order in Israel. These should be understood as background conditions against which Israeli constitutionalism is operating. They include the strengthening of judicial review alongside rising political resistance to the Court’s power; populism in political discourse targeting rule of law institutions; the erosion of individual rights alongside the strengthening of nationalist elements; and increasing divisions inside Israeli society. These challenge the idea of a successful constitutional revolution in terms of its inherent promise to better protect individual rights and safeguard the rule of law. In describing these features, we seek to situate the Supreme Court, judicial review, and the legal-constitutional order generally, in the larger sphere of Israeli society and politics.

Striking a Balance between Free Association and Regulating Membership of a ‘Community’: Exploring s 235 of the Constitution of South Africa

2021 ◽  
Vol 28 (1) ◽  
pp. 91-116
Author(s):  
Bertus De Villiers
Keyword(s):  
South Africa ◽  
International Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Free Association ◽  
Self Determination ◽  
Freedom Of Association ◽  
Essential Question ◽  
Universal Standard

Section 235 of the Constitution of South Africa contains a promise of potential self-determination of language and cultural communities. An essential question arising from this promise is how an individual’s freedom of association interacts with the ability of a community to determine its membership. This article reflects on this question with reference to standards developed in international law and practices in the constitutional law of selected case studies. Whereas international law sets a universal standard of free association, states have developed practices whereby the individual’s right to free association is recognised, but where there are also some measures allowed to ensure that an individual is indeed accepted by and part of the community. Any conflicts that arise are, generally speaking, subject to a form of judicial review.

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