Why Write New Rights?

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
Social Movements ◽  
Social Change ◽  
Constitutional Law ◽  
Constitutional Development ◽  
State Constitutions ◽  
Positive Rights ◽  
The Creation

This chapter considers the variety of political calculations that drove activists, organizations, and social movements to pursue the creation of positive rights. It first explains the classic idea of constitutions as constraints before discussing the main assumptions of entrenchment theories. It then considers the distinctions among the concepts of entrenchment, judicialization, and constitutional development. It also offers additional accounts of constitutional development and highlights several unique features of constitutional law, other than its (widely recognized) capacity to entrench established policies by allowing courts to protect them. The chapter contends that we should view state constitutions' responsiveness to social change as a feature that allows us to expand the existing understanding of constitutional development.

Social Movements and Constitutionalism in Japan, South Korea, and Taiwan

2019 ◽  
Vol 14 (S1) ◽  
pp. S51-S75
Author(s):  
Ngoc Son BUI
Keyword(s):  
Social Movements ◽  
South Korea ◽  
Social Movement ◽  
Constitutional Law ◽  
East Asian ◽  
Constitutional Change ◽  
Positive Account ◽  
Comparative Constitutional Law ◽  
The Creation ◽  
Full Consideration

AbstractThis article considers whether the academic inquiry of comparative constitutionalism in Japan, South Korea, and Taiwan may be further developed by a full consideration of the relevance of social movements. Integrating social movement theories into comparative constitutional law, this article argues that a more nuanced positive account of the creation and consolidation of constitutionalism in these East Asian polities must be situated within the engagement of social movements in discursive venues for formal and informal constitutional change.

Conclusion

2013 ◽  
Author(s):  
Emily Zackin
Keyword(s):  
Environmental Protection ◽  
The State ◽  
Labor Rights ◽  
Constitutional Rights ◽  
Constitutional Development ◽  
State Constitutions ◽  
Positive Rights ◽  
The Many ◽  
Constitutional Tradition ◽  
Over Time

This concluding chapter clarifies that the book has refuted the claim that positive rights are outside the American constitutional tradition by investigating the various campaigns to add education and labor rights as well as rights to environmental protection to state constitutions. By including state constitutions in our view of American constitutionalism, many successful movements for positive constitutional rights become immediately apparent. The campaigns for positive rights have varied across states and over time, but each has worked for a more expansive government, one intended to protect people from threats other than a tyrannical state, and often from the dangers associated with unfettered capitalism. This chapter examines the exclusionary and racist side of the movements that championed positive rights and highlights the many, mutually influential connections between constitutional development at the state and federal levels.

scholarly journals The Varieties of Constitutional Change

2018 ◽  
Author(s):  
Lawrence Friedman
Keyword(s):  
New England ◽  
Constitutional Law ◽  
State Courts ◽  
Constitutional Change ◽  
Judicial Interpretation ◽  
Constitutional Development ◽  
State Constitutions ◽  
Federal Constitutional ◽  
The Relationship ◽  
Robert Williams

New England Law Review. Vol. 51(3)(2018). While federal constitutional law has changed over the two hundred plus years since the framing, relatively little of that development was the result of the formal amendment process prescribed by Article V. Rather, significantly more change to our understanding of numerous constitutional provisions has come about through litigation over the meaning of the text. Regardless of the source of constitutional alteration, we regard the result as valid constitutional law. But that difference in source has fueled a great many efforts to legitimize judicial interpretation as a mode of constitutional change—to legitimize, that is, constitutional development by the least representative, least accountable department of the federal government. State constitutions, on the other hand, tell a different story. In the state constitutional context, the tension between litigation-driven change and amendment-driven change is diminished by the fact that formal amendment is a more realistic proposition that it is under the U.S. Constitution. This piece is an introduction to a Symposium on the relationship between state courts and constitutional change under state constitutions. The Symposium focuses on Jonathan Marshfield’s article, “Courts and Informal Constitutional Change in the States,” and includes responsive essays by Massachusetts Supreme Judicial Court Associate Justice Scott Kafker, Justin Long, James Gardner, Yaniv Roznai, and Robert Williams.

State Constitutional Law in 1935–36

1936 ◽  
Vol 30 (4) ◽  
pp. 692-712
Author(s):  
J. A. C. Grant
Keyword(s):  
Constitutional Law ◽  
Common Law ◽  
Constitutional Development ◽  
State Constitutions ◽  
Chief Justice ◽  
Fundamental Law ◽  
Law Courts ◽  
National Constitution ◽  
State Constitutional Law ◽  
American State

There is a kernel of truth in Chief Justice Hughes' remark that “we are under a Constitution, but the Constitution is what the judges say it is.” To realize its full significance, “constitution” must be written in the plural. We have forty-nine courts of last resort, each interpreting the fundamental law of its own jurisdiction. The essential similarity of our state constitutions, and of our state bills of rights to that of the national constitution, together with the tendency of common law courts to follow each other's decisions, lend an element of stability to American state constitutional law that otherwise would be lacking. At the same time, even within so short a period as a year, the interplay of personalities may be seen moulding new doctrines in particular jurisdictions, which doctrines take on added significance because of the realization that they may, in time, serve as a basis for redirecting the course of constitutional development in other jurisdictions as well.

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.

Getting to a Utopian World Beyond Gender

2018 ◽  
Author(s):  
Barbara J. Risman
Keyword(s):  
Social Movements ◽  
Social Change ◽  
Utopian Vision ◽  
Structure Framework ◽  
And Gender ◽  
Inclusive Society ◽  
Fourth Wave ◽  
Different Levels

This final chapter suggests that the incompatibilities of expectations and realities at different levels of the gender structure create “crises tendencies” that may provide leverage that future activists can use to push for social change. While some contemporary social movements agitating for a more feminist and gender inclusive society appear to conflict with each other, Risman argues that using a gender structure framework allows seemingly contradictory feminist and gender inclusive movements to understood they are not alternatives but rather a tapestry, each one taking aim at a different level of our complex gender structure. The chapter concludes with a utopian vision: a call for a fourth wave of feminism to dismantle the gender structure. Since the gender structure constrains freedom, to move toward a more just future we must leave it behind.

Toward the Creation of a New Order for Nigerian Women: Recent Trends in Politics and Policies

1989 ◽  
Vol 17 (2) ◽  
pp. 7-8
Author(s):  
Simi Afonja
Keyword(s):  
Social Change ◽  
Development Process ◽  
Time Constraints ◽  
New Order ◽  
Access To Resources ◽  
Nigerian Women ◽  
Limited Access ◽  
Recent Trends ◽  
The Creation

Women experience numerous contradictions as they undergo social change. Many have celebrated the autonomy of Nigerian women. Some “got drunk” with the notions of this autonomy. Change created a number of problems that supposed autonomy could not come to grips with. Just a few examples: First, women appeared to contribute more labor to the development process than men, burdening them with physical and time constraints. Second, modernization created new resources and along with them, new kinds of inequalities in access to resources. Specifically, women had much more limited access to resources than men. Consequently, women could not invest resources in the same ways as men.

State Constitutional Law in 1929–1930

1930 ◽  
Vol 24 (3) ◽  
pp. 666-686 ◽  
Author(s):  
Oliver P. Field
Keyword(s):  
Constitutional Law ◽  
State Courts ◽  
State Constitutions ◽  
Course Of Action ◽  
The Subject ◽  
State Constitutional Law

State courts determine, in the absence of constitutional provision to the contrary, whether amendments to state constitutions have been proposed and adopted in the manner provided for these constitutions. Not every minor deviation from the course of action marked out in the constitution for its amendment is deemed sufficient to justify the court in declaring that the amendment has been “unconstitutionally adopted,” but whether these deviations are serious enough to warrant such a declaration is a question to be determined by the courts themselves. Statutes supplementing constitutional provisions on the subject of amendment are valid if not in conflict with the constitutional provisions themselves, and substantial compliance with these rules is also required by the courts. Sometimes the provisions regulating the subject of publication of proposed amendments are constitutional; at other times they are statutory. In either case, publication in the manner provided for, and for the period of time provided for, is necessary to the validity of the amendment. Publication for two weeks, when the period should have been four weeks, was deemed sufficient by the Nebraska court to invalidate the amendment involved.

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