A Study on the Constitutional Meaning of the Ocean

2021 ◽  
Vol 24 ◽  
pp. 165-200
Author(s):  
Sang-Goo Jeon
Keyword(s):  
Constitutional Meaning

scholarly journals Religious Neutrality in the Early Republic

2018 ◽  
Author(s):  
Jud Campbell
Keyword(s):  
Religious Freedom ◽  
Natural Right ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Conscientious Objectors ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Government ◽  
Constitutional Meaning ◽  
Military Draft

Governmental neutrality is the heart of the modern Free Exercise Clause. Mindful of this core principle, which prevents the government from treating individuals differently because of their religious convictions, the Supreme Court held in Employment Division v. Smith that a neutral law can be constitutionally applied despite any incidental burdens it might impose on an individual�s exercise of religion. Conscientious objectors such as Quakers, for instance, do not have a constitutional right to be exempt from a military draft. Thus, neutrality now forms both the core and the outer limit of constitutionally guaranteed religious freedom. Judged according to founding-era views, however, this interpretation of the Free Exercise Clause is deeply problematic. Although historical scholarship has focused on the particular issue of religious exemptions, this Article takes a different approach by reexamining early debates about neutrality itself. These neglected sources demonstrate that modern cases invert the founding-era conception of religious freedom. For the Founders, religious freedom was primarily an unalienable natural right to practice religion�not a right that depended on whether a law was neutral. This evidence illuminates not only a significant transition in constitutional meaning since the Founding but also the extent to which modern priorities often color our understanding of the past.

Text and Republican Government

2021 ◽  
pp. 57-82
Author(s):  
George Thomas
Keyword(s):  
Political Theory ◽  
Free Speech ◽  
Freedom Of Speech ◽  
Religious Liberty ◽  
Republican Government ◽  
New Republic ◽  
Constitutional Meaning ◽  
Constitutional Republic

Early conflicts over religious liberty and freedom of speech reveal that while we can agree on the Constitution’s text, we can profoundly disagree over the unwritten ideas we think the text represents. Debates about religion and free speech point to deeper unwritten principles that are at the very heart of America’s constitutional republic. The first debate deals with the prohibition on religious tests for office in Article VI. The second speaks to freedom of speech and press. In these early debates about religious liberty and freedom of speech, the antagonists agreed on the wording of constitutional text; they disagreed profoundly on the principles and political theory that underlie it in their understanding of America’s new republic. These early arguments reveal the importance of constructing constitutional meaning from the unwritten ideas that underlie the constitutional text.

The Unitary Executive

2021 ◽  
pp. 24-38
Author(s):  
Stephen Skowronek ◽  
John A. Dearborn ◽  
Desmond King
Keyword(s):  
Selection Procedure ◽  
Executive Branch ◽  
Executive Power ◽  
Unitary Theory ◽  
Complete Control ◽  
The People ◽  
Constitutional Meaning ◽  
Selection Mechanisms ◽  
Presidential Performance ◽  
The Relationship

This chapter examines the theory of the unitary executive and its deployment in the Trump presidency afgainst the specter of a Deep State. The theory asserts that the president possesses all the executive power, that the incumbent alone is the executive branch. The idea is that anything less than complete control over administration by that individual risks an obfuscation of responsibility, clouding the judgments on presidential performance that “the people” get to deliver retrospectively in the next election. This reading of the Constitution is often joined to a strikingly plebiscitary conception of American democracy. This chapter takes up two issues of special interest. The first is an alternative “republican reading” of the Constitution which anticipates inter-branch collaboration in the control of administrative power. The second is the relationship between the vesting clause of Article II, on which the unitary theory is based, and the selection procedure, which has changed radically since its original constitutional formulation. The chapter concludes by pointing to the distortions of constitutional meaning introduced by joining an expansive reading of the vesting clause to contemporary selection mechanisms.

Part II Negotiating Constitutionalism, Ch.5 Constitutional Interpretation

2016 ◽  
Author(s):  
Chandrachud Chintan
Keyword(s):  
Constitutional Interpretation ◽  
Indian Constitution ◽  
Constitutional Meaning ◽  
Tools And Techniques ◽  
Constitutional Jurisprudence

This chapter examines the question of interpretation with regard to the Indian Constitution. It begins with an overview of two meta-judgments underlying constitutional interpretation, the first of which relates to the legitimate source of the Constitution’s authority and the second to the tools and techniques that can be relied upon in order to expound constitutional meaning. It then considers the three historical phases of the Indian Supreme Court’s interpretive philosophy: textualism, structuralism and ethicalism, and panchayati eclecticism. It also explains how the Court started deciding cases based on self-conceptions of its own role, resulting in the adoption of various interpretive approaches that are not only incongruent, but also often producing incoherent constitutional jurisprudence.

Judicial Power and Consociational Federation: The Bosnian Example

2018 ◽  
Vol 46 (4) ◽  
pp. 631-644
Author(s):  
Alex Schwartz
Keyword(s):  
Power Sharing ◽  
Judicial Power ◽  
Political Elites ◽  
Political Systems ◽  
Judicial Supremacy ◽  
Constitutional Meaning ◽  
Influential Theory ◽  
Core Features

An influential theory, sometimes called the ‘fragmentation hypothesis’, proposes that divided political systems will tend to empower courts because they make it more difficult for political elites to coordinate court-curbing retaliation. Another influential perspective proposes that federal systems are conducive to judicial empowerment because they create a demand for the authoritative adjudication of jurisdictional boundaries and/or they facilitate judicial supremacy over constitutional meaning. If both of these theories are correct, we might expect consociational (ie, power sharing) federations to be especially hospitable to the emergence of powerful courts. With reference to the example of Bosnia-Herzegovina, this article questions this conclusion; it is theorized here that core features of consociational federation will tend to undermine the growth and maintenance of judicial power.

What's Old Is New Again: Political Science, Law, and Constitutional Meaning

2013 ◽  
Vol 46 (03) ◽  
pp. 493-497
Author(s):  
Robert J. Spitzer
Keyword(s):  
Political Science ◽  
Graduate Program ◽  
Public Law ◽  
American Political Science Association ◽  
Political Scientist ◽  
Disciplinary History ◽  
History Of ◽  
Governmental Power ◽  
Constitutional Meaning ◽  
American Political Science

Political science and law intersect not only in the political world, but as disciplines. This is as it should be, and for two important reasons: disciplinary history and content. As Fisher (2009, 798) notes, the first political science graduate program, founded in 1880, studied “history, law, and philosophy.” The American Political Science Association, founded in 1903, defined itself in terms of six distinct areas of study, five of which—comparative legislation, international law, constitutional law, administrative law, and jurisprudence—were in some manner about law (798). In addition, law is the expression of authority by the state. Its formation, content, and consequences form the purest expression of governmental power through what we more comprehensively define today as public policy. Early in the history of our discipline, political scientists approached the law in a manner that was “legalistic, formalistic, conceptually barren and largely devoid of what would today be called empirical data” (Somit and Tannenhaus 1967, 69). That is, they approached it as did lawyers of the time. Yet as political science matured, those who studied public law ceased being merely “little lawyers,” vesting their work with no less respect for the content of law, but tempered also with the tools and perspectives of what was by now a distinct discipline. No early political scientist better exemplified this maturation than Edward Corwin, especially (although not exclusively) as reflected in his timeless study,The President: Office and Powers(1957).

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