scholarly journals Protection of Fundamental Rights by Constitutional Courts - A Comparative Perspective

2000 ◽  
Vol 31 (2) ◽  
pp. 401 ◽  
Author(s):  
Mario Patrono
Keyword(s):  
United States ◽  
The United States ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Benjamin Franklin ◽  
Constitutional Courts ◽  
Basic Law ◽  
History Of ◽  
Theory Of Law ◽  
Constitutional Adjudication

"Man", said Benjamin Franklin, "is a tool-making animal". A major contribution of 20th century Western legal thought to tool-making was possibly the publication in 1914 of Reichgesetz und Landesgesetz nach der österreichen Verfassung1 by Hans Kelsen, a Czech lawyer, but Austrian by adoption. Kelsen is noted for his "pure theory of law". By conferring upon a special constitutional court the exclusive power to rule on the constitutionality of legislation and to refuse to enforce legislation that in its judgment violated the constitution, Kelsen found a way for the United States pattern of constitutional adjudication (as established in 1803 by Chief Justice John Marshall in Marbury v Madison) to work in countries which have (as in the United States) a written and "rigid" Basic Law, and even where the doctrine of precedent does not operate.This is a very short history of the development of that Kelsen "tool" and an evaluation of it.

Dieter Grimm

2020 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
Constitutional Law ◽  
The United States ◽  
Public Intellectual ◽  
Law School ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
European Democracy ◽  
Humboldt University ◽  
Post War ◽  
Constitutional Adjudication

Dieter Grimm is one of Germany’s foremost scholars of constitutional law and theory with a high international reputation and an exceptional career. He teaches constitutional law at Humboldt University Berlin and did so simultaneously at the Yale Law School until 2017. He was one of the most influential justices of the German Constitutional Court where he served from 1987 to 1999 and left his marks on the jurisprudence of the Court, especially in the field of fundamental rights. He directed one of the finest academic institutions worldwide, the Wissenschaftskolleg zu Berlin (Institute for Advanced Study). He is also well known as a public intellectual who speaks up in questions of German politics and European integration. This book contains a conversation that three scholars of constitutional law led with Dieter Grimm on his background, his childhood under the Nazi regime and in destroyed post-war Germany, his education in Germany, France, and the United States, his academic achievement, the main subjects of his research, his experience as a member of a leading constitutional court, especially in the time of seminal changes in the world after the fall of the Berlin Wall, and his views on actual challenges for law and society. The book is an invaluable source of information on an outstanding career and the functioning of constitutional adjudication, which one would not find in legal textbooks or treatises. Oxford University Press previously published his books on Constitutionalism. Past, Present, and Future (2016) and The Constitution of European Democracy (2017).

LEGAL JUSTICE IN PRESIDENTIAL IMPEACHMENT PRACTICE BETWEEN INDONESIA AND THE UNITED STATES OF AMERICA

2021 ◽  
Vol 9 (3) ◽  
pp. 465
Author(s):  
Hanif Fudin
Keyword(s):  
United States ◽  
Rule Of Law ◽  
House Of Representatives ◽  
The United States ◽  
Scientific Article ◽  
Constitutional Court ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Basic Law ◽  
Republican Government

The constitution is approved as a law capable of guaranteeing human rights and protection of the constitution and past coordination, as well as being the corpus of the administration of the rule of law entity itself. Regarding the state of Indonesia and the United States, if examined by these two countries, they have similarities in the form of republican government or presidential system of government. However, on the contrary, in the impeachment transition, the two countries appear to be dichotomous both formally and materially. Therefore, this scientific article discusses reviewing the impeachment provisions of the Presidents of the two countries who agree to develop agreements and principles in checks and balances in trying to actualize the value of the country's legal justice. Therefore, in approving the discourse of research methods, descriptive-comparative methods are used with normative-philosophical and comparative-critical discussions. On that basis, this study discusses the practice of presidential impeachment in Indonesia to consider more legal justice, because it is through a legal process involving the Constitutional Court which implements practices in the United States that only involve the Senate and the House of Representatives which incidentally is a political institution. It considers the constitution in the basic law of the country.

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.

scholarly journals United/States: A Revolutionary History of American Statehood

2020 ◽  
pp. 1
Author(s):  
Craig Green
Keyword(s):  
United States ◽  
The United States ◽  
New Federalism ◽  
Cultural Narrative ◽  
Political Actors ◽  
State Constitutions ◽  
Political Debates ◽  
History Of ◽  
Constitutional Adjudication ◽  
British Colonies

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential. “States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification. Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.

Part 3 Institutional Control of Constitutionalism, 3.1 Models of Institutional Control: The Experience of Islamic Countries

2012 ◽  
Author(s):  
Grote Rainer
Keyword(s):  
The United States ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Institutional Control ◽  
Constitutional Review ◽  
Islamic World ◽  
The United Kingdom ◽  
Islamic Countries ◽  
Almost All ◽  
Constitutional Adjudication

This chapter discusses constitutional review in Islamic countries. It covers the basic models of constitutional review; composition of constitutional courts; powers of constitutional courts; and effects of constitutional court decisions. It shows that introduction of constitutional review in the Islamic world has largely been pattered after foreign models, particularly of France (namely in the Maghreb countries and Lebanon), the United States (in Egypt and the Arab peninsula), the United Kingdom (Pakistan, Nigeria, Malaysia), and Germany (Turkey, Indonesia), with modifications to the particular political and cultural contexts of the respective countries. While almost all constitutional review bodies practice some form of constitutional review of legislation or another, most constitutions in the Islamic world still do not provide for access of individuals to constitutional adjudication.

The Decision of the AustrianVerfassungsgerichtshofon the EU Charter of Fundamental Rights: An Instrument of Leverage or Rearguard Action?

2015 ◽  
Vol 16 (6) ◽  
pp. 1429-1448 ◽  
Author(s):  
Andreas Orator
Keyword(s):  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
Rights Protection ◽  
Administrative Action ◽  
Charter Of Fundamental Rights ◽  
Constitutional Adjudication ◽  
The Eu

In a landmark decision of 2012 on the relevance of the EU Charter of Fundamental Rights (CFR) in domestic constitutional adjudication, the AustrianVerfassungsgerichtshof(Constitutional Court) substantially extended the applicable yardstick, according to which the constitutionality of ordinary laws and administrative action may be assessed, to certain Charter rights. At the same time, theVerfassungsgerichtshofclaimed its active commitment to judicial dialogue with the Court of Justice of the European Union (CJEU) through the preliminary reference procedure pursuant to Article 267 TFEU to effectively protect Charter-based fundamental rights of individuals. Arguably, both the domestic and Union-wide ramifications of this “instant classic” case of a domestic constitutionalization of the Charter are substantial, delivering insight not least as to the transformative role of the Charter for domestic fundamental rights protection and the adaptations of domestic constitutional courts in such a changed environment.

I The Constitutional Court, 2 The Constitutional Court: Rules and Model

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
United States ◽  
Judicial Review ◽  
The United States ◽  
Constitutional Court ◽  
The World ◽  
Hans Kelsen ◽  
Constitutional Adjudication

This chapter succinctly introduces the reader to the composition, jurisdictional scope, and methods of judicial review in Italy. Using both direct and incidental methods of judicial review, the Italian system combines certain elements of centralized systems (like the Austrian paradigm of Hans Kelsen) with elements of diffuse systems of review like that of the United States. The chapter highlights the highly collegial structure and process of the Court. Overall, the cooperative and multilevel character of Italian constitutional adjudication emerges as its most distinctive contribution to our understanding of the range of the varieties of constitutional models and experiences in the world.

4 Legal Acts, 4.2 Solange I, BverfGE 37, 291, 29 May 1974; Solange II , BverfGE 73, 339, 22 October 1986; Solange III, BverfGE 89, 155 12 October 1993; and Solange IV, BverfGE 102, 147, 7 June 2000

2016 ◽  
Author(s):  
Hilpold Peter
Keyword(s):  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Constitutional Courts ◽  
Control Activity ◽  
Community Law ◽  
Rights Protection ◽  
Basic Law ◽  
European Court

The Solange case-law stands for a specific form of interaction between the legal order of the European Union (EU) and the legal orders of the member states (MS) or, respectively, between the European Court of Justice (ECJ) and the national Constitutional Courts of the MS. At the start of this line of cases the German Constitutional Court (Bundesverfassungsgericht—BverfG) first upheld its power to consider the compatibility of Community law rules with fundamental rights of the Basic Law (Grundgesetz) ‘as long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights’ (Solange I). Afterwards, when fundamental rights protection had become sufficiently strong within the EC/EU the BVerfG declared to refrain from such a control activity ‘as long as the European Communities ensure effective protection of fundamental rights’ (Solange II). Subsequently, this case-law was further clarified.

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