A government of limited powers The challenge of American history – Federalism – The separation of powers – The Bill of Rights – Unity and diversity – Politics and the Constitution

2013 ◽  
pp. 9-24
Keyword(s):  
American History ◽  
Separation Of Powers ◽  
Bill Of Rights

Japan

2021 ◽  
pp. 115-132
Author(s):  
Steven Gow Calabresi
Keyword(s):  
World War Ii ◽  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The Political ◽  
Bill Of Rights ◽  
Checks And Balances ◽  
Rubber Stamp ◽  
The Supreme Court ◽  
The Government

This chapter looks at the Japanese experience with judicial review. The Supreme Court of Japan does not enforce those parts of the Japanese Constitution, like Article 9, which prohibits war making; Article 21, which protects freedom of speech; or Article 89, which forbids taxpayer money from being used to hire Shinto priests. The Supreme Court of Japan thus refuses to enforce important articles in the Constitution of Japan. It does rubber stamp and thus legitimize actions taken by the political branches of the government. Why has judicial review of the constitutionality of legislation failed to take root in Japan? Japan does not need either a federal or a separation of powers umpire, since Japan is, firstly, a unitary nation-state with no need for a federalism umpire; and, secondly, a parliamentary democracy with a weak upper house of the legislature. Moreover, Japan has never atoned for the wrongs it committed during World War II nor has it truly admitted to even having done the horrible things that Japan did. A nation cannot get rights from wrongs judicial review and a Bill of Rights unless it admits it has done something wrong. Finally, the Japanese Constitution contains an inadequate system of checks and balances. As a result, the Supreme Court of Japan may not have the political space within which it can assert power.

scholarly journals Editorial

2017 ◽  
Vol 12 (3) ◽  
pp. 1
Author(s):  
Francois Venter
Keyword(s):  
Separation Of Powers ◽  
Memorial Lecture ◽  
Judicial Activism ◽  
Bill Of Rights ◽  
Societal Values ◽  
Constitutional Adjudication

We are pleased to publish here, as an oratio, the Ebsworth Memorial Lecture delivered by Mr Justice Louis Harms in February 2007.  In his lecture he addressed a range of contentious issues regarding the challenges of judging under a (new) Bill of Rights and he inter alia raises, "without answering, the question of whether a bill of rights should reflect existing societal values or whether it should create them."  He also spoke candidly of judicial activism, verbosity emanating from the bench, the judiciary and the separation of powers and (in-)consistency in constitutional adjudication.  Among his conclusions he states that a Bill of Rights "is supposed to remove arbitrariness, not only of legislation but also of adjudication."

‘Dethroning Politics’: Liberalism, Constitutionalism and Democracy in the Thought of F. A. Hayek

1994 ◽  
Vol 24 (4) ◽  
pp. 419-441 ◽  
Author(s):  
Richard Bellamy
Keyword(s):  
Separation Of Powers ◽  
Bill Of Rights ◽  
Popular Participation ◽  
The Rule Of Law ◽  
Liberal Democratic ◽  
The One ◽  
The Individual ◽  
Higher Law ◽  
The Relationship

The relationship between liberalism and democracy is notoriously paradoxical. On the one hand, the justification for democratic procedures most commonly rests on liberal assumptions. Standard liberal arguments for democracy range from the importance of consent due to the moral primacy of the individual, to the role of critical argument and the diversity of opinion for the discovery of truth. On the other hand, liberal institutional arrangements, such as the separation of powers and the rule of law, have frequently been interpreted as constraints upon democracy, albeit necessary ones if democracy is not to undermine itself. The paradox arises from the fact that liberalism provides a philosophical basis for regarding democracy as the only valid source of law whilst apparently appealing to some higher law in order to limit democracy itself. This paradox is embodied in the constitutions of most liberal democratic states. For generally these documents contain provisions – such as a bill of rights guaranteeing the freedoms of speech, assembly and association – designed to secure popular participation in the democratic process, alongside others – such as rights not obviously intrinsic to democratic decision making and mechanisms for judicial review – which seek to limit the power of democratic assemblies.

The Commonwealth of Australia

2021 ◽  
pp. 229-262
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Federal Government ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Bill Of Rights ◽  
High Court ◽  
Parliamentary Government ◽  
The Common ◽  
The U.S

This chapter traces the development of judicial review in Australia, which was modeled on the U.S. system of judicial review. Australian judicial review evolved out of a need for an umpiring body in federalism and separation of powers cases. Indeed, the original purpose of the Australian High Court under the Australian Constitution was to umpire federalism disputes between the Commonwealth and the six Australian states, which predated the federal government of Australia; and to ensure that the traditionally guaranteed rights and freedoms of British subjects under the common law and responsible parliamentary government were respected regarding Australia’s citizens. The Australian Constitution does not have a Bill of Rights or an enumerated Judicial Review clause, but it does limit and enumerate the broad powers of the Australian federal government. The Framers of the Australian Constitution, like the Framers of the U.S. Constitution, assumed that the courts would have the power of judicial review. As a result, there is, in Australia, judicial review in federalism and separation of powers umpiring cases but not in Bill of Rights cases since there is essentially no Australian Bill of Rights.

Fair Trial: Rights of the Accused in American History: Bicentennial Essays on the Bill of Rights.

1993 ◽  
Vol 59 (3) ◽  
pp. 532
Author(s):  
Ric Sheffield ◽  
David J. Bodenhamer ◽  
James W. Ely
Keyword(s):  
American History ◽  
Fair Trial ◽  
Bill Of Rights

scholarly journals Judging Under a Bill of Rights

2017 ◽  
Vol 12 (3) ◽  
pp. 1
Author(s):  
Louis TC Harms
Keyword(s):  
Separation Of Powers ◽  
Memorial Lecture ◽  
Judicial Activism ◽  
Bill Of Rights ◽  
Societal Values ◽  
Constitutional Adjudication

  We are pleased to publish here, as an oratio, the Ebsworth Memorial Lecture delivered by Mr Justice Louis Harms in February 2007.  In his lecture he addressed a range of contentious issues regarding the challenges of judging under a (new) Bill of Rights and he inter alia raises, "without answering, the question of whether a bill of rights should reflect existing societal values or whether it should create them."  He also spoke candidly of judicial activism, verbosity emanating from the bench, the judiciary and the separation of powers and (in-)consistency in constitutional adjudication.  Among his conclusions he states that a Bill of Rights "is supposed to remove arbitrariness, not only of legislation but also of adjudication." 

scholarly journals Book Review: Ideas and Movements That Shaped America: From the Bill of Rights to “Occupy Wall Street"

2016 ◽  
Vol 55 (3) ◽  
pp. 251
Author(s):  
Donna Church
Keyword(s):  
Social Movements ◽  
American History ◽  
Historical Context ◽  
Occupy Wall Street ◽  
Bill Of Rights ◽  
Wall Street ◽  
Alphabetical Order ◽  
Primary Documents ◽  
Key Concepts

This three volume encyclopedia offers more than 200 key concepts in American history from “Abolition” to “Zionism” similar to the earlier Encyclopedia of American Social Movements edited by Immanuel Ness (Sharpe 2004). While Ness uses sixteen larger groupings, Green and Stabler present more than 200 discrete ideas in alphabetical order in 1,000-3,000–word commentaries coupled with related excerpts of primary documents including laws, speeches, essays, and interviews that highlight significant voices and moments in American history. A timeline in the first volume situates the ideas in their historical context.

scholarly journals Judicial Activism and Constitutional (Mis) Interpretation

2021 ◽  
Vol 40 (1) ◽  
pp. 119-148
Author(s):  
Johnny M Sakr ◽  
Augusto Zimmermann
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Judicial Activism ◽  
Legal Interpretation ◽  
Bill Of Rights ◽  
Original Intent ◽  
The Rule Of Law ◽  
Political Opinion ◽  
Australian Capital ◽  
The Us

In this article, the authors explore the concept of judicial activism and its application in the Australian domestic cases of Australian Capital Television Pty Ltd v Commonwealth and Love v Commonwealth, and in the US case of Obergefell v Hodges. The article highlights the devastating effects of judicial activism on legal interpretation, arguing that such activism compromises the doctrine of separation of powers and affects the realisation of the rule of law, resulting in a method ofinterpretation that incorporates personal biases and political opinion, thus ignoring the original intent of the framers of the Australian Constitution. Moreover, the article highlights that implementing a federal Bill of Rights might further exacerbate these ongoing problems concerning judicial activism in Australia.

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