The First State Constitutional Conventions, 1776-1783

1908 ◽  
Vol 2 (4) ◽  
pp. 545-561
Author(s):  
W. F. Dodd
Keyword(s):  
Constitutional Law ◽  
Judicial Power ◽  
State Constitutions ◽  
Constitutional Conventions ◽  
Historical Origins ◽  
The Revolution

The distinction between constitutions and statutes is a fundamental one in American constitutional law, but it is a matter of surprise that no one has yet attempted to discuss this distinction in its historical origins. Brinton Coxe in his Judicial Power and Unconstitutional Legislation has traced the development of the doctrine that statutes in conflict with the constitution may be declared invalid by the courts. Judge J. A. Jameson in his Treatise on Constitutional Conventions has given a brief account of the adoption of the first State constitutions; but no one has yet studied the adoption of these constitutions in order to find what were the theories of their framers as to the distinction between constitutions and statutes.By the term constitution, as used both in England and America before the Revolution, was understood the general and more permanent principles upon which government is based. The term was used on both sides of the Atlantic to signify something superior to legislative enactments, and the principles of the constitution were appealed to as beyond the control of the British parliament.

Don’t You be My Neighbor: Support for Racial-Exclusion Constitutional Provisions in Mid-19th Century Indiana and Illinois

2021 ◽  
pp. 1532673X2110153
Author(s):  
Jac C. Heckelman ◽  
John Dinan
Keyword(s):  
Social Welfare ◽  
19Th Century ◽  
Welfare Policy ◽  
Social Welfare Policy ◽  
Racial Threat ◽  
Southern State ◽  
State Constitutions ◽  
Racial Exclusion ◽  
Constitutional Conventions ◽  
Levels Of Support

Racially discriminatory provisions in the U.S. Constitution and southern state constitutions have been extensively analyzed, but insufficient attention has been brought to these provisions when included in northern state constitutions. We examine constitutional provisions excluding blacks from entering the state that were adopted by various northern states in the mid-19th Century. Previous scholarship has focused on the statements and votes of the convention delegates who framed these provisions. However, positions taken by delegates need not have aligned with the views of their constituents. Delegates to state constitutional conventions held in Illinois in 1847, Indiana in 1850 and 1851, and Oregon in 1857 opted to submit to voters racial-exclusion provisions separate from the vote to approve the rest of the constitution. We exploit this institutional feature by using county-level election returns in Illinois and Indiana to test claims about the importance of partisan affiliation, religious denomination, social-welfare policy concerns, labor competition, and racial-threat theory in motivating popular support for entrenching racially discriminatory policies in constitutions. We find greater levels of support for racial exclusion in areas where Democratic candidates polled better and in areas closer to slave-holding states where social-welfare policy concerns would be heightened. We find lower levels of support for racial exclusion in areas (in Indiana) with greater concentrations of Quakers. Our findings are not consistent with labor competition or racial-threat theories.

State Constitutional Law in 1929–1930

1930 ◽  
Vol 24 (3) ◽  
pp. 666-686 ◽  
Author(s):  
Oliver P. Field
Keyword(s):  
Constitutional Law ◽  
State Courts ◽  
State Constitutions ◽  
Course Of Action ◽  
The Subject ◽  
State Constitutional Law

State courts determine, in the absence of constitutional provision to the contrary, whether amendments to state constitutions have been proposed and adopted in the manner provided for these constitutions. Not every minor deviation from the course of action marked out in the constitution for its amendment is deemed sufficient to justify the court in declaring that the amendment has been “unconstitutionally adopted,” but whether these deviations are serious enough to warrant such a declaration is a question to be determined by the courts themselves. Statutes supplementing constitutional provisions on the subject of amendment are valid if not in conflict with the constitutional provisions themselves, and substantial compliance with these rules is also required by the courts. Sometimes the provisions regulating the subject of publication of proposed amendments are constitutional; at other times they are statutory. In either case, publication in the manner provided for, and for the period of time provided for, is necessary to the validity of the amendment. Publication for two weeks, when the period should have been four weeks, was deemed sufficient by the Nebraska court to invalidate the amendment involved.

Who Decides?

2021 ◽  
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
Constitutional Law ◽  
Local Governments ◽  
State Governments ◽  
Constitutional Rights ◽  
Individual Rights ◽  
Home Rule ◽  
Constitutional Protection ◽  
State Constitutions ◽  
Law And Politics ◽  
Federal Constitutional

The earlier book, 51 Imperfect Solutions, told stories about specific state and federal individual constitutional rights, and explained two benefits of American federalism: how two sources of constitutional protection for liberty and property rights could be valuable to individual freedom and how the state courts could be useful laboratories of innovation when it comes to the development of national constitutional rights. This book tells the other half of the story. Instead of focusing on state constitutional individual rights, it focuses on state constitutional structure. Everything in law and politics, including individual rights, eventually comes back to divisions of power and the evergreen question: Who decides? The goal of this book is to tell the structure side of the story and to identify the shifting balances of power revealed when one accounts for American constitutional law as opposed to just federal constitutional law. Who Decides? contains three main parts—one each on the judicial, executive, and legislative branches—as well as stand-alone chapters on home-rule issues raised by local governments and the benefits and burdens raised by the ease of amending state constitutions. A theme in the book is the increasingly stark divide between the ever-more-democratic nature of state governments and the ever-less-democratic nature of the federal government over time.

Part IV Practice and Process, Ch.22 Justiciability

2018 ◽  
Author(s):  
Kirk Jeremy
Keyword(s):  
Constitutional Law ◽  
Judicial Power ◽  
Economic Issues ◽  
Primary Function ◽  
Judicial Remedy

This chapter examines the notion of ‘justiciability’ in Australia. In this chapter, justiciability is understood as referring to issues considered appropriate and capable of being subject to judicial resolution and relief. The primary function of courts is to resolve legal disputes. Constitutional law questions, of their nature, tend to overlap with political, social, moral, and economic issues. Disputes in these areas may raise issues which courts are not well-suited to resolve. Further, there may be a concern about whether a case presents a real controversy for determination which is in dispute between the parties before the court, which is appropriately raised by those parties, and/or which is capable of being quelled in whole or part by judicial remedy. Such issues are linked in the Australian constitutional context to the interwoven requirements that there be a ‘matter’ before the court capable of determination by exercise of the ‘judicial power of the Commonwealth’.

scholarly journals Encuesta sobre la independencia del Poder Judicial

2016 ◽  
pp. 15 ◽  
Author(s):  
Teoría y Realidad Constitucional
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Judicial Power ◽  
The Rule Of Law ◽  
Law Professors

En esta encuesta un grupo de Catedráticos de Derecho Constitucional contestan un conjunto de preguntas sobre la independencia del Poder Judicial en el Estado de Derecho, relativas a las amenazas que existen a esa independencia; las preguntas abordan temas relativos al Consejo General del Poder Judicial, la figura del aforamiento, el régimen del Ministerio Fiscal y el derecho de gracia, entre otros.In this academic survey a group of Constitutional Law Professors answer some questions about the independence of the Judicial Power and the Rule of Law and about the threats to this independence; the questions approach topics relative to the Judicial Power government, the procedural privileges, the regime of the Attorney General’s office and judicial pardon or grant of clemency.

Uncertain sovereignty: Ceylon as a Dominion 1948–1972

2019 ◽  
Vol 17 (4) ◽  
pp. 1258-1282
Author(s):  
Rehan Abeyratne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Fundamental Rights ◽  
Judicial Power ◽  
Privy Council ◽  
Minority Communities ◽  
Cautious Approach ◽  
Legislative Power ◽  
The Supreme Court ◽  
The Subject

Abstract This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon’s Dominion period (1948–1972). While the Ceylon Constitution has been the subject of in-depth historical and sociopolitical study, it has received less attention from legal scholars. This article hopes to fill that gap. It analyzes Ceylon Supreme Court and Privy Council judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes. On fundamental rights, both the Supreme Court and the Privy Council adopted a cautious approach, declining to invalidate legislation that had discriminatory effects on minority communities. This reluctance to entrench fundamental rights resulted, at least in part, from judges’ undue deference to the Ceylon Parliament, which was wrongly looked upon like its all-powerful British progenitor. On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council—as a foreign judicial body intervening in Ceylonese affairs—stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.

State Constitutional Law in 1932–33

1933 ◽  
Vol 27 (4) ◽  
pp. 577-596
Author(s):  
Charles G. Haines
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
Federal Courts ◽  
State Constitutions ◽  
State Constitutional Law ◽  
Unusual Stress ◽  
Emergency Measures

One of the best known members of the bench in the United States raised the query whether constitutional law was not becoming so textual and so formal in its applications that it was losing touch with the realities of life. For the operations of government to be “cabined and confined” under ordinary circumstances raises difficulties not readily surmounted; but in times of unusual stress, either constitutional limitations unduly restrict urgent and necessary action or they must be ignored to permit emergency measures. A resumé of the decisions of state and federal courts affecting state constitutions for the year 1932–33 indicates the tendency both toward undue formality in interpretation and toward the warping of the constitutional mold to sanction ways and means of dealing with extraordinary conditions. Law, like life, is a matter of growth, and, as Lord Bryce long since observed, under written constitutions ways of growth must be found either within or without the provisions of fundamental laws.

The Failure of Mirabeau's Political Ideas

1951 ◽  
Vol 13 (1) ◽  
pp. 88-107
Author(s):  
J. J. Chevallier
Keyword(s):  
Constitutional Law ◽  
The Other ◽  
English School ◽  
Political Theorist ◽  
Political Ideas ◽  
Other Hand ◽  
The Brain ◽  
Better Than ◽  
The Revolution

“Mirabeau and Sieyès are the two strongest minds of the Revolution,” said Talleyrand who knew both of them well. This is no doubt true. It is likewise true that Mirabeau and Sieyes were at opposite poles from each other intellectually. Sieyès was a political theorist; they called him the brain. Mirabeau, on the other hand, was the least theoretical of men. When the Estates General opened he had no draft of a Constitution; Sieyès, on the other hand, had thought of one and even several.For the whole course of the Revolution until his death in April, 1791, Mirabeau cannot be described by an invariable formula. He cannot be classified in the pro-English school. He wrote to a minister before the Revolution: “the executive life” suited him better than “the speculative life.” Sieyès, and even Mounier, would have been wonderful professors of Constitutional Law. Not Mirabeau. His culture was enormous but disorganized. An omnivorous reader and always with pen in hand, he had made innumerable excerpts from all sorts of books, and drew upon them with no scruples about plagiarism when he wrote his own works. One must be careful to avoid the temptation, to which some have succumbed, of seeing in these plagiarisms the expression of Mirabeau's own ideas.

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