scholarly journals Unsteady Architecture: Ambiguity, the Senate Reference, and the Future of Constitutional Amendment in Canada

2015 ◽  
Vol 60 (4) ◽  
pp. 883-903 ◽  
Author(s):  
Emmett Macfarlane
Keyword(s):  
Supreme Court ◽  
Term Limits ◽  
Unintended Consequences ◽  
Constitutional Amendment ◽  
The Political ◽  
Retirement Age ◽  
Logical Consistency ◽  
Political Implications ◽  
The Supreme Court ◽  
The Future

This article critically examines the Supreme Court of Canada’s opinion in the Senate Reform Reference from the perspective of its coherence in interpreting the various amending procedures in Part V of the Constitution Act, 1982. It analyzes the ways that the underlying logic of the Court’s reasoning, particularly with respect to the method of selecting senators and senatorial term limits, creates ambiguity and risks unintended consequences for future attempts at constitutional amendment. The Court’s explicit refusal to distinguish between the federal government’s unilateral ability to enact a retirement age and its logic that term limits, regardless of length, require the consent of the provinces under the general amending procedure lacks logical consistency and arguably erodes the unilateral amending procedure to a problematic degree. In the context of its reasoning with respect to changes to the method of selecting senators, the Court’s reliance on the amorphous notion of the “constitutional architecture” clouds the definable limits of “method of selection” under section 42(1)(b). The Senate Reform Reference introduces considerable ambiguity into what changes the federal executive can implement with respect to the appointments process itself. The article concludes by exploring the political implications that the decision has for the future of Senate reform specifically and for our ability to amend the constitution generally.

scholarly journals Tapping the Potential of Senate-Driven Reform: Proposals to Limit the Powers of the Senate

2015 ◽  
Vol 24 (2) ◽  
Author(s):  
Andrew Heard
Keyword(s):  
Supreme Court ◽  
Status Quo ◽  
Constitutional Amendment ◽  
The Political ◽  
Legislative Process ◽  
Political Leaders ◽  
Political Will ◽  
The Supreme Court ◽  
The Status ◽  
Democratic System

In the immediate aftermath of the 2014 Senate Reform Reference, there was considerable talk about the limitations that the Supreme Court had put on Senate reform. Some political leaders expressed frustration and declared that we are left with the status quo. But, that view both misunderstands what the Court said and underestimates what can be achieved through non-constitutional means. There is much that can be done simply with the political will to change the Senate situation without resorting to constitutional amendment; senators already have the power to effect some serious reform from within. This paper focuses on an unorthodox suggestion: that substantive reforms might be achieved through changes to the Rules of the Senate governing its legislative process. With some changes to both the legislative and appointment processes, substantial improvements to the Senate are both possible and achievable. The result would be a Senate better able to perform its intended function as a chamber of sober second thought. It would also answer the most serious concerns about an appointed Senate’s role in a modern democratic system.

Politics will raise Argentine Supreme Court doubts

2021 ◽  
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Vice President ◽  
Executive Branch ◽  
The Political ◽  
Content Type ◽  
High Profile ◽  
Judicial Decisions ◽  
Political Implications ◽  
The Supreme Court

Significance This relates to its declining efficiency, increasing tensions among its members and pressures from the political parties to influence high-profile judicial investigations involving former Presidents Cristina Fernandez de Kirchner (CFK, now vice-president) and Mauricio Macri. The recent election of Horacio Rosatti as its president has been welcomed by the judiciary as a positive move that could improve the Court’s functioning. Impacts Changes in the Supreme Court will exacerbate the lack of dialogue with the executive branch. Judicial decisions with significant political implications cannot be ruled out before the next presidential election in 2023. The government’s confrontational approach towards opposition parties will make it difficult to select a replacement for Highton.

The Supreme Court and “The Moment of Truth”

1960 ◽  
Vol 54 (4) ◽  
pp. 879-886
Author(s):  
Carl Brent Swisher
Keyword(s):  
Supreme Court ◽  
Institutional Analysis ◽  
National Election ◽  
Judicial System ◽  
The Political ◽  
Intrinsic Nature ◽  
Political Implications ◽  
The Supreme Court ◽  
The Moment

This annual ceremony of our non-partisan Association is being held at a time when most political scientists are preoccupied with the events of a fateful national election. To avoid any implications of partisanship, it seems best on this occasion to eschew politics in the conventional sense and to concentrate on institutional analysis not applicable to the current conflict. This discussion will therefore deal with the Supreme Court and with the Court primarily as an institution, rather than with problems of changing personnel or the political implications of particular decisions. It will assume that institutions are important in terms of their intrinsic nature and that the kind of institution to be used for a particular governmental task depends largely on the kind of task to be performed, with room for exceptions in exceptional circumstances. So it is that the Court will be presented not in isolation but as a part of the judicial system at whose apex it stands, and will be discussed in terms of the assumptions which lie back of and dictate its rituals, routines and procedures, and which have a great deal to do with determining its efficacy for the tasks allocated to it.Because analysis of hallowed institutions and ritualized performance is often incorrectly identified with the expression of hostility or disrespect, with only deference permitted on the part of him who would leave the ritual or the institution with the stature it had when he approached it, let me emphasize that the purpose here is not to attack or to disparage but to analyze and to encourage further analysis, with creative ends in view.

From an unconstitutional constitutional amendment to an unconstitutional constitution? Lessons from Honduras

2019 ◽  
Vol 8 (1) ◽  
pp. 40-70 ◽  
Author(s):  
DAVID E LANDAU ◽  
ROSALIND DIXON ◽  
YANIV ROZNAI
Keyword(s):  
Supreme Court ◽  
Political Institutions ◽  
Constitutional Law ◽  
Constitutional Amendment ◽  
The Political ◽  
Potential Utility ◽  
The People ◽  
The Supreme Court ◽  
Comparative Constitutional Law ◽  
Global Constitutionalism

Abstract:The unconstitutional constitutional amendment doctrine has emerged as a highly successful, albeit still controversial, export in comparative constitutional law. The doctrine has often been defended as protecting a delegation from the people to the political institutions that they created. Other work has noted the doctrine’s potential utility in guarding against abusive constitutionalism. In this article, we consider how these justifications fare when expanded to encompass claims against the original constitution itself, rather than a later amendment to the text. That is, beyond the unconstitutional constitutional amendment doctrine, can or should there be a doctrine of an unconstitutional constitution? Our question is spurred by a puzzling 2015 case from Honduras where the Supreme Court held an unamendable one-term limit on presidential terms, as well as protective provisions punishing attempts to alter that limit, to be unconstitutional. What is particularly striking about the case is that these provisions were not later amendments to the constitution, but rather parts of the original 1982 constitution itself. Thus, this article examines the possibility of ‘an unconstitutional constitution’, what we predict to be the next trend in global constitutionalism.

Retiring Life Tenure: On Term Limits and Regular Appointments at the Supreme Court

2020 ◽  
Author(s):  
Tyler Cooper ◽  
Amanda Dworkin ◽  
Dylan Hosmer-Quint ◽  
Amanda Pescovitz
Keyword(s):  
Supreme Court ◽  
Term Limits ◽  
The Supreme Court

The tenure of English judges

1913 ◽  
Vol 7 (2) ◽  
pp. 217-229 ◽  
Author(s):  
C. H. McIlwain
Keyword(s):  
Supreme Court ◽  
Political Science ◽  
Theory And Practice ◽  
The Political ◽  
The Supreme Court ◽  
History Of ◽  
The Subject ◽  
General Object ◽  
William Iii ◽  
Science Association

At the meeting of the Political Science Association last year, in the general discussion, on the subject of the recall, I was surprised and I must admit, a little shocked to hear our recall of judges compared to the English removal of judges on address of the houses of parliament.If we must compare unlike things, rather than place the recall beside the theory or the practice of the joint address, I should even prefer to compare it to a bill of attainder.In history, theory and practice the recall as we have it and the English removal by joint address have hardly anything in common, save the same general object.Though I may not (as I do not) believe in the recall of judges, this paper concerns itself not at all with that opinion, but only with the history and nature of the tenure of English judges, particularly as affected by the possibility of removal on address. I believe a study of that history will show that any attempt to force the address into a close resemblance to the recall, whether for the purpose of furthering or of discrediting the latter, is utterly misleading.In the history of the tenure of English judges the act of 12 and 13 William III, subsequently known as the Act of Settlement, is the greatest landmark. The history of the tenure naturally divides into two parts at the year 1711. In dealing with both parts, for the sake of brevity, I shall confine myself strictly to the judges who compose what since 1873 has been known as the supreme court of judicature.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

The Role of Courts in Rifted Democracies

1999 ◽  
Vol 33 (2) ◽  
pp. 216-258 ◽  
Author(s):  
Ruth Gavison
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Judicial Review ◽  
Public Life ◽  
The Political ◽  
The Rule Of Law ◽  
Independent Judiciary ◽  
The Supreme Court ◽  
Harsh Criticism

A discussion of the role of courts in Israel today demands some introductory remarks. The Supreme Court and the President of the Supreme Court enjoy great acclaim and respect within Israel and abroad, but have recently come under attack from a variety of sources. These attacks are often confused, and many of them are clearly motivated by narrow partisan interests and an inherent objection to the rule of law and judicial review. But these motives do not necessarily weaken the dangers which the attacks pose to the legitimacy of the courts in general, and the Supreme Court in particular, in Israel's public life. The fact that in some sectors extremely harsh criticism of the court is seen to be an electoral boost, testifies to the serious and dangerous nature of the threat. This situation creates a dilemma for those who want a strong and independent judiciary, believing it is essential for freedom and democracy, but who also believe that, during the last two decades, the courts have transgressed limits they should respect. The dilemma becomes especially acute when the political echo sounds out in one's criticism, and when one is part of the group that believes that the legal and the judicial systems have made some contribution to the prevalence of these hyperbolic and dangerous attacks, as I am.

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