A Century of Lost Time: 1865–1954

This chapter traces the arc of the U.S. Supreme Court’s engagement with the memory of slavery between the end of the Civil War and the Court’s decision in Brown v. Board of Education. The chapter highlights how, across multiple generations of justices, the Court’s mnemonic jurisprudence was dominated by the parenthetical mode. The Court treated slavery as a parenthetical aberration from the American constitutional tradition, and it treated the post-Civil War constitutional amendments as narrow responses to that aberration. On the whole, the Court construed the new amendments in light of the original constitutional structure, rather than the reverse. Eventually, in cases like Plessy v. Ferguson, the parenthetical mode took the form of willful forgetting—a resumption of the relevant evil in altered guise.

Einfluss der Landesverfassungen und ausländischer Verfassungen auf die Grundrechte des Grundgesetzes

The fact that the Western constitutional tradition and the Weimar Imperial Constitution had an influence on the emergence of the fundamental rights of the Basic Law is a commonplace that has always remained vague. This work goes beyond this commonplace. The key personalities are identified and the various constitutional texts and documents are compared and contrasted with the help of a methodical approach. From the interplay of personal continuity and material legal correspondences, a multitude of model effects can be demonstrated, whereby the – often misjudged – pre-basic state constitutions in particular play an essential role.

Orestes Brownson, Old Republican

Written in the aftermath of the Civil War, Orestes Brownson’s The American Republic is careful to address the arguments of the recently-defeated southerners. The running debates between southern constitutionalists and their nationalist opponents had produced a rich literature from the 1790s through secession. Brownson himself had known some of this literature and had greatly admired John C. Calhoun, the pre-eminent southern constitutionalist of the 1830s and 1840s. Brownson drew on the Old Republican constitutional tradition in The American Republic in order to counter the tendencies he saw in the northern movement for a national democratic politics. Through comparing Brownson’s ideas in The American Republic to those of Jeffersonian theorist John Taylor of Caroline, his reliance on Old Republican thinking becomes apparent.

Human rights in Ukraine: historical and theoretical dimension

The article presents the result of a historical and theoretical study of human rights in Ukraine. Emphasis is placed on the constitutionaldocuments of different periods and human rights enshrined in them. The problem was considered in the Аncient, Cossack,1917–1921 and Soviet periods, from individual rights, through the freedoms and privileges of the estates, to the expansion of the conceptin terms of volume and range of persons. The conclusion about the continuity of the Ukrainian state and legal tradition and suchfactors influencing the development of human rights as the national liberation struggle, joining various states, the processes of limitingand eliminating Ukrainian autonomy, the development of their own statehood is substantiated.The analyzed constitutional documents of various state formations that existed in Ukraine in 1917–1920 give grounds to assertthat regardless of their political orientation, they consistently developed, consolidated and guaranteed basic natural, social, economicand political human rights. The whole complex of human rights can be divided into two groups: those that were due to specific historicalcircumstances (characteristic of different state entities) and independent of time, universal human rights, which were recognized by all.This group includes the right to life, liberty, religion, equality before the law, equality regardless of gender, origin, nationality, freedomof speech, inviolability of home and secrecy of correspondence. Despite unfavorable external conditions, the lack of some experienceof state and legal construction, the political forces that led the Ukrainian state formation in this period did not follow the path of dictatorshipand oppression of human and civil rights. This creates a certain constitutional tradition of treating human rights as the greatestvalue. As for the Soviet period of development, the topic of human rights was not silenced at all during this period either: the list ofhuman rights was consistently expanded in the Soviet Constitutions, despite their declarativeness and differences with practice.

Rediscovering Britain’s Wider Constitutional Tradition

This chapter attempts to identify the deep constitutional crisis of the British body-politic and introduce a remedy in the form of new constitutional settlement founded upon a written constitution. It explains the 'unwritten constitution', which grew up over the centuries from a hotchpotch of statutes, judicial decisions, disputed conventions, and half-remembered traditions has reached the end of its useful life. It also emphasizes the revival of the British democracy through a written constitution, a supreme and fundamental law that is founded upon a broad political and societal consensus. The chapter reviews constitutional proposals that reflect the 'Charter 88 agenda', which has motivated constitutional reformers in Britain for the last three decades. It responds to the new constitutional crisis that was unanticipated by the reformers of the pre-1997 era.

Overcoming Necessity

Using emergency as a cause for action ultimately leads to an almost unnoticed evolution in the political understanding of presidential powers. The Constitution of the United States, however, was designed to function under “states of exception,” most notably through the separation of powers, and provides ample internal checks on emergency actions taken under claims of necessity. This book urges the United States Congress, the courts, and other bodies to put those checks into practice. The book analyzes the constitutional norms that fail to guide and constrain the choice of action through an analysis of what is appropriate. It explores how constitutional norms always apply as unavoidably normative constitutional questions during an emergency. It explains how necessity can produce dictatorship, because the people are willing to allow whatever it takes to solve their immediate needs, and it looks into the theory that a president might suspend the constitutional order in order to post hoc political accountability. It then talks about necessity that enables presidential discretion, and responds to arguments regarding the president having all the power that necessity confers. The book considers the scope of implied presidential power, arguing that even if there is power to do what is necessary, it is still constrained by conceptions of what is proper. It emphasizes how deference to the president is inconsistent with a constitutional tradition that preciously guards decisions about liberty. The book concludes with a review of the commitment to constitutional values as a constitutive feature of political identity in American constitutionalism.