scholarly journals The Difficulty of Constitutional Amendment in Canada

2015 ◽  
Author(s):  
Richard Albert
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Amendment ◽  
Court Decisions ◽  
Constitutional Politics ◽  
Comparative Constitutional Law ◽  
Constitutional Conventions ◽  
Democratic Constitution

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. This article suggests that the Constitution of Canada may be even harder to amend. Canadian constitutional politics have proven the textual requirements for major constitutional amendment so far impossible to satisfy. But the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the text. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness.

James Bryce and the Australian Constitution

2015 ◽  
Vol 43 (2) ◽  
pp. 177-200
Author(s):  
Stephen Gageler
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Development ◽  
Practical Operation ◽  
Responsible Government ◽  
Shed Light

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

Tragic Constitution: United States Democracy and Its Discontents

PMLA ◽  
2014 ◽  
Vol 129 (4) ◽  
pp. 708-726
Author(s):  
Peter Lancelot Mallios
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Theoretical Understanding ◽  
Constitutional System ◽  
Brazilian Theater

Tragedy is a recurrent subject in recent constitutional law scholarship. But this scholarship theorizes tragedy through a single narrow model, generally applies it to a limited conception of the domain of constitutional law, and ultimately conceives tragedy only as a liability rather than as a positive potentiality of constitutional practice. This essay critiques one theoretical understanding of tragedy and introduces three more, to argue for an open-ended praxis of pluralist tragic engagement with the United States Constitution that is necessary for the sober, mature, demystified, and deliberative functionality of the constitutional system. Each of these four models of tragedy is paired with a domain of constitutional law: Aristotle's model with interpretation, Hegel's with structure and institutions, the radical Brazilian theater director Augusto Boal's with performance and public effects, and Nietzsche's with cultural and educational accessibility.

The Legal Context

2013 ◽  
Author(s):  
Rickie Solinger
Keyword(s):  
United States ◽  
The United States ◽  
National Government ◽  
United States Constitution ◽  
Court Decisions ◽  
State Laws ◽  
Governing System ◽  
Legal Context ◽  
Federal Laws

Why are reproductive issues governed variously by state laws, federal laws, and court decisions? The United States Constitution created a governing system known as federalism, under which the states and the national government share powers. The Constitution is specific about which powers the...

The Process of Constitutional Amendment: Law, History, and Politics

1986 ◽  
Vol 49 ◽  
pp. 16-19 ◽  
Author(s):  
Walter Dellinger
Keyword(s):  
United States ◽  
Historical Context ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Amendment ◽  
The Political ◽  
Constitutional Change ◽  
Law And Policy ◽  
The Subject ◽  
Constitutional System

The first part of the seminar examined a mystery that reverberates through two centuries: how does a constitutional system of government, itself born of revolution, properly provide for its own revision — provide literally for its own reconstitution? We first considered the political and intellectual assumptions against which Article V of the United States Constitution — the amendment article — was drafted, and then looked briskly at the historical context in which the Constitution's twenty-six amendments have been adopted. With this as background, we addressed a range of issues concerning the law and policy of constitutional change that are currently the subject of lively dispute in America.

scholarly journals Age Limitations for Presidential Candidates? Exploring Student Perspectives Using Classroom Debates

2021 ◽  
Vol 5 (Supplement_1) ◽  
pp. 195-196
Author(s):  
Jason Garbarino
Keyword(s):  
United States ◽  
Presidential Election ◽  
The United States ◽  
Reflective Writing ◽  
United States Constitution ◽  
Constitutional Amendment ◽  
Donald Trump ◽  
Public Discussion ◽  
Presidential Candidates ◽  
Writing Assignment

Abstract Ahead of the 2020 Presidential Election, Donald Trump (age 73) and his primary opponent, Joseph Biden (age 76) received extensive criticism regarding the aptness of their candidacies based upon their current ages. While the United States Constitution requires candidates to have “attained the age of thirty-five years”, no age cap for presidential candidates exists. In response to timely public discussion, undergraduate interprofessional gerontology students worked in assigned groups to prepare to debate either in favor of, or in opposition to a constitutional amendment capping the age of presidential candidates. Following classroom debates, course faculty moderated in-depth conversation examining cogent arguments made throughout the debates. After attending this session, participants will understand the logistics of planning in-class debates, moderating post-debate student discussions, and evaluation methods of student debate performance and on a corresponding reflective writing assignment. Student and faculty takeaways and prospective classroom debate ideas will be provided.

Constitutional Law as a Bulwark against Tyranny: The American Experience

Moreana ◽  
2012 ◽  
Vol 49 (Number 189- (3-4) ◽  
pp. 89-116
Author(s):  
Christopher J. Riley
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Executive Power ◽  
Thomas More ◽  
Legal Proceedings ◽  
American Experience ◽  
Government Power ◽  
A Charge

This paper considers the legal proceedings in Thomas More’s trial on a charge of treason in contrast with certain specific protections and limitations as to power under the United States Constitution. King Henry VIII’s case against Thomas More demonstrates the risk to liberty when power is concentrated in one entity. A written constitution that limits government power and separates the exercise of judicial, legislative and executive power is the best protection against tyranny.

scholarly journals Church, State and Education in Canada and the United States : A Study in Comparative Constitutional Law

2005 ◽  
Vol 21 (2) ◽  
pp. 461-484
Author(s):  
Edward G. Hudon
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
Establishment Clause ◽  
Comparative Constitutional Law ◽  
Il Y A

Aux États-Unis comme au Canada il y a toujours eu, et il continue à y avoir, des problèmes à propos du rôle de l'État dans le domaine de l'éducation confessionnelle. Au Canada, l'article 93 de l'Acte de l'Amérique du Nord britannique protège les droits confessionnels des catholiques et des protestants. Aux États-Unis, le premier amendement à la Constitution ordonne une séparation entre l'Église et l'État. Il y a également L'Establishment Clause qui défend que l'État subventionne les écoles confessionnelles. Dans cet article, l'auteur retrace l'interprétation donnée à l'article 93 de l'Acte de l'Amérique du Nord britannique ainsi que l'interprétation donnée à l'Establishment Clause du premier amendement de la Constitution américaine, et fait des comparaisons entre les deux. En conclusion, il constate que même les juges les plus savants ne pourront peut-être jamais trouver la solution définitive aux problèmes qui se posent.

Presidential inability: Filling in the gaps

2014 ◽  
Vol 33 (2) ◽  
pp. 11-36
Author(s):  
John D. Feerick
Keyword(s):  
United States ◽  
Vice President ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Amendment ◽  
Fifth Amendment ◽  
Constitutional Convention ◽  
The Third ◽  
The World ◽  
Presidential Succession

This article focuses on potential gaps caused by the absence from the Twenty-Fifth Amendment of provisions to deal with the disability of a Vice President and the omission from the statutory line of succession law of provisions comparable to Sections 3 and 4 of the Twenty-Fifth Amendment for when there is an able Vice President. The analysis offers a critical review of the latent ambiguities in the succession provision to the United States Constitution, noting problems that have arisen from the time of the Constitutional Convention, to John Tyler's accession to office, to numerous disability crises that presented themselves throughout the twentieth century, to the present day. As the world becomes more complex and threats to the presidency more common, continued examination of our succession structure and its adequacy for establishing clear and effective presidential succession provisions under a broad range of circumstances is of paramount concern. This article embraces this robust discussion by offering some suggestions for improving the system in a way that does not require a constitutional amendment. The first part of the analysis traces the events that have driven the development of the nation's succession procedures. The second part examines the inadequacies, or “gaps,” that remain in the area of presidential inability, and the third part sets forth recommendations for resolving these gaps.

Some Causes and Consequences of the Bifurcated Treatment of Economic Rights and “Other” Rights Under the United States Constitution

1992 ◽  
Vol 9 (1) ◽  
pp. 141-170 ◽  
Author(s):  
Jonathan R. Macey
Keyword(s):  
United States ◽  
Constitutional Law ◽  
Freedom Of Expression ◽  
The United States ◽  
Federal Courts ◽  
United States Constitution ◽  
Freedom Of Religion ◽  
Economic Rights ◽  
The Past

The existence of a meaningful distinction between economic rights and “other rights” has been a cornerstone of constitutional law for the past sixty years. During this period, the federal courts consistently have taken the position that Congress is free to abuse citizens’ economic liberties, but is not permitted to interfere with such other, noneconomic “rights” as freedom of expression, freedom of assembly, and freedom of religion.

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