Constitutional Rights and Constitutional Design : Moral and Empirical Reasoning in Judicial Review

2018 ◽  
Keyword(s):  
Judicial Review ◽  
Constitutional Rights ◽  
Constitutional Design ◽  
Empirical Reasoning

Republicanizing Rights?

2019 ◽  
pp. 197-218
Author(s):  
Eoin Daly
Keyword(s):  
Human Dignity ◽  
Judicial Review ◽  
Constitutional Rights ◽  
Public Authorities ◽  
Constitutional Adjudication

This chapter contends that the republican argument against judicial review is misplaced, illustrating this argument by reference to the doctrine of proportionality. Whereas constitutional rights are often understood as placing fixed limits on politics, transcending historical and political contingencies, the doctrine of proportionality in particular enables the understanding of constitutional adjudication as accounting for the instability, the contestability, and even the indeterminacy of rights. In short, the doctrine is consistent with an understanding of rights as falling within the ‘circumstances of politics.’ In particular, constitutional rights can be understood not as guaranteeing spheres of presumptive immunity for particular kinds of activities presumed as essential to human dignity or autonomy, but rather as requiring public authorities to provide special kinds of justifications for specific kinds of acts (just as Forst, in particular, suggests).

Classroom convention: teaching comparative constitutional design through simulation

2017 ◽  
Vol 12 (1) ◽  
pp. 84-94
Author(s):  
Sarah Fisher ◽  
Florian Justwan
Keyword(s):  
Comparative Politics ◽  
Judicial Review ◽  
Design Methodology ◽  
Gifted Students ◽  
Learning Objectives ◽  
Constitutional Convention ◽  
Constitutional Design ◽  
Content Type ◽  
Parliamentary Sovereignty ◽  
Presidential Systems

Purpose The purpose of this paper is to detail a simulation exploring the academic and real-world debates surrounding constitutional design. Design/methodology/approach The authors deployed this simulation in different contexts: undergraduate courses in comparative politics and middle school classrooms of gifted students in India. Findings In conjunction with discussion of institutional setup, such as parliamentary vs presidential systems and judicial review vs parliamentary sovereignty, the students were required to design a new constitution for a fictional country that just overthrew a brutal dictator. Throughout the simulation, the students were assigned to be the representatives of a particular ethnic group, each with distinct interests to be represented during the constitutional convention. Originality/value The authors detail the learning objectives and simulation setup for this constitutional convention. Finally, the authors discuss some issues raised by the students during the simulation.

Constitutional Rights and Democracy: A Reply to Professor Bellamy

2013 ◽  
Vol 14 (8) ◽  
pp. 1039-1051 ◽  
Author(s):  
W.J. Waluchow
Keyword(s):  
Judicial Review ◽  
Constitutional Rights ◽  
Social Cooperation ◽  
Bill Of Rights ◽  
Political Equality ◽  
Constitutional Review ◽  
The People ◽  
Democratic Character ◽  
Self Rule ◽  
Elected Representatives

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.

Rights Review in the High Court and the Cultural Limits of Judicial Power

2013 ◽  
Vol 41 (3) ◽  
pp. 585-608
Author(s):  
Robert Woods
Keyword(s):  
Judicial Review ◽  
Judicial Politics ◽  
Legal Culture ◽  
Judicial Power ◽  
Institutional Constraints ◽  
Constitutional Rights ◽  
High Court ◽  
Rights Protection

How are we to explain the High Court's reluctance to move into stronger forms of rights protection, as evinced by the disparity between its federalism and rights-based judicial review practices? It has been suggested that the federal and ‘rights’ provisions of the Constitution are equally indeterminate, calling into question the notion that the legal materials themselves compel a preference for one or another type of review. And the Court's record of rendering politically consequential decisions in its federalism jurisdiction suggests that political-institutional constraints may not preclude it from expanding its rights review powers. This article contends that the disparity in the Court's review practices can be explained only by way of a theory of judicial politics that is sensitive to notions of cultural as well as political constraint. It traces the historical emergence of an Australian politico-legal culture, before examining its role in restraining the further protection of constitutional rights.

scholarly journals Menyoal Kebebasan Beragama dan Penodaan Agama Di Indonesia

2015 ◽  
Vol 3 (2) ◽  
pp. 195-212
Author(s):  
Yayan Sopyan
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Religious Beliefs ◽  
Freedom Of Expression ◽  
Freedom Of Speech ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Reform Era ◽  
The Republic ◽  
The Right

Abstract: Questioning the Religious Freedom and blasphemy in Indonesia. The presence of the Constitutional Court in the reform era is the strengthening of the foundations of constitutionalism in the Constitution of the Republic of Indonesia Year 1945. The Court in this case a role to enforce and the protector of the citizen's constitutional rights and the protector of the human rights. Including in this case, the right to religion and religious practices and teachings of their respective religions, in accordance with the constitutional mandate. However, on the other hand there is the discourse of freedom of expression and freedom of speech includes freedom to broadcast religious beliefs and understanding of the "deviant" and against the "mainstream" religious beliefs and understanding in general, as in the case of Ahmadiyah. The Court in this case is required to provide the best attitude when faced judicial review in this case still required in addition to guarding the constitution in order to run properly.   Abstrak: Menyoal Kebebasan Beragama dan Penodaan Agama di Indonesia. Kehadiran lembaga Mahkamah Konstitusi di era reformasi merupakan upaya penguatan terhadap dasar-dasar konstitusionalisme pada Undang-Undang Dasar Negara Republik Indonesia Tahun 1945. MK dalam hal ini berperan menegakkan dan melindungi hak-hak konstitusional warga negara (the protector of the citizen’s constitutional rights) dan pelindung HAM (the protector of the human rights). Termasuk dalam hal ini, hak untuk memeluk agama dan menjalankan ibadah serta ajaran agamanya masing-masing, sesuai dengan amanat konstitusi. Namun, disisi lain ada wacana kebebasan berekspresi dan kebebasan berpendapat termasuk didalamnya kebebasan untuk menyiarkan keyakinan dan pemahaman keagamaan yang “menyimpang” dan bertentangan dengan “mainstream” keyakinan dan pemahaman keagamaan pada umumnya, seperti dalam kasus Ahmadiyah. MK dalam hal ini dituntut untuk mampu memberikan sikap terbaik saat dihadapkan judicial review dalam kasus ini selain tetap dituntut untuk mengawal konstitusi agar dapat berjalan sebagaimana mestinya. DOI: 10.15408/jch.v2i2.2314

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