Showing papers on "Constitution published in 1990"

The Calculus of Consent

Abstract: The Calculus of Consent Nancy Cruzan's personal tragedy threatens to become a national one. Embracing so many fundamental and symbolic aspects of life, the question of how she dies has understandably provoked profound and diverse responses. Various arguments have sought to convince the U.S. Supreme Court to preserve either the right to life or the right to liberty, as if they were mutually exclusive and the only two interests at stake. Yet the rhetoric of rights has proven confusing, demonstrating only that "[l]ogic relentlessly and inappropriately pursued to its end can as readily lead to destructive results as can muddled emotions." [1] At issue in Cruzan is not a choice between life and liberty, but a way of life consistent with a belief in ordered liberty. Cruzan poses a basic political problem that should occasion honest introspection and a search for a solution that harmonizes conflicting concerns most consistently with the Constitution's vision of the proper relationship between individuals and the state, and of consent's role in maintaining accountability. Understanding and preserving that vision takes more than mere philological and rhetorical skill; it requires embracing an experientially shaped perspective such as guided the Constitution's framers. The Constitutional Vision Where logic alone fails us, experience must be our guide, for as Justice Holmes noted, "the life of the law has not been logic: it has been experience." Reconciling the values, explicit and implied, that the Constitution requires us to protect involves bringing the wisdom gained from experiences the framers never had, such as that derived from the history of modern medicine, to the vision represented by the Constitution. The Constitution rests on the belief that citizens should both exercise self-determination and be free from unwarranted government interference in their personal lives. Central to the framers' vision was their experience of living under a government that denied individual freedoms concerning religious practice, expression, and conscience, and permitted excessive accruals of power, which the framers viewed as a form of tyranny. However difficult it may be to respect freedom when its results seem obnoxious, the framers concluded that the hardships of permitting freedom are fewer and less dangerous than the hardships of denying it, and that the dispersion of power prevents the excesses of tyranny. The Constitution's basic sense is that life is better if the state does not dictate attitudes or actions and plays a minimal role in defining individual values. [2] Preserving Life This constitutional vision of balance exposes major difficulties in the Missouri Cruzan opinion. In asserting an unchecked state interest in preserving life, even in cases that do not violate any criminal prohibition against murder or suicide, the Missouri Supreme Court undertakes to obstruct an act the state could not prosecute. Because Nancy Cruzan "may" live for thirty years and is not imminently dying for as long as she is artificially fed, she is not terminally ill under Missouri's statute. The court concludes that its interest in preserving life outweighs any identifiable interest in permitting her to die. Indeed, Missouri's "unqualified" interest in preserving life precludes any interest in the quality of life. Moreover, the court announces that only "clear and convincing" evidence will satisfy the obligation to respect self-determination, and then discounts entirely evidence the trial court found credible. To protect the infirm and the disabled, the court rejects as unreliable substituted judgement or best interests standards for decisionmaking. The crucial question of precisely what evidence would be "clear and convincing" is left unanswered, but the language used by the court, the trends indicated by the O'Connor case in New York, and legislation enacted in furtherance of the so-called "right-to-life" agenda, suggests that such an evidentiary standard will prove chimerical. …

The Age of Rights

Abstract: This text explores the principal issues and developments, both in international human rights and in rights in the United States, and then compares the concepts and conditions of rights in various parts of the world. It pays particular attention to the role of US foreign policy.

A Theory of Property

Abstract: 1. Property and justification Part I. Property Rights and Personal Rights: 2. Understanding property 3. Persons and their bodies 4. Body rights and the constitution Part II. From Individuals to Social Context: 5. Incorporation and projection 6. Control, privacy and individuality 7. Property and moral character 8. Alienation and society Part III. Justification and Distributive Equity: 9. Utility and efficiency 10. Justice and equality 11. Labor and desert 12. Conflict and resolution Part IV. Applications: 13. Business corporations 14. Gratuitous transfers 15. A moral and political theory of takings 16. Takings and the constitution Table of cases Index of names Index of subjects.

Law, Boundaries, and the Bounded Self

Abstract: IN THE AMERICAN TRADITION of constitutionalism, property has served as a powerful symbol of rights as limits to government. This notion of "rights" functioning as "limits" to "government" involves a complex set of abstractions and metaphoric links that nevertheless is taken as common sense by most Americans. Perhaps the clearest form of that common sense is "Government can't take what's mine" or the more elegant "A man's home is his castle." These phrases convey an image of property as a source of security whose sacredness acts as a barrier even to the power of the state. The enduring power of this image reflects (among other things) the original importance of property in shaping the American conception of rights as limits to the legitimate scope of the state. This conception is, in turn, a part of a deeper phenomenon: the focus on boundaries as the means of comprehending and securing the basic values of freedom or autonomy. The importance of property in American constitutionalism both reflects and exacerbates the problems of boundary as a central metaphor in the legal rhetoric of freedom. I have argued in Private Property and the Limits of American Constitutionalism that in the early development of the American Constitution property served as the defining instance of the notion of rights as limits, and that this notion is an attempt to address the inevitable tension between the individual and the collective.' I concluded that the attempt is deeply flawed and that the problems go beyond the particular limitations of the focus on property. In the end, the new vision of constitutionalism we need requires something more than the replacement of property with other rights that can serve as boundaries. We need a new conception of the tension between the collective and the individual, for which boundary is not an apt metaphor. My purpose here is to explore that rejection of boundary. Drawing on this earlier work, I start by discussing the American Constitution as an instance of the ways boundary has been central to our conceptual and institutional framework and give an account of how the Constitution came to have the boundarylike structure that it does and of what role property played in the emergence of that structure. I offer a critical appraisal of the lasting consequences of the original focus on property that is within the conventions of constitutional discourse. My argument leads, however, to the claim that the particular limita-

Justice as translation : an essay in cultural and legal criticism

Abstract: White extends his conception of United States law as a constitutive rhetoric shaping American legal culture that he proposed in When Words Lose Their Meaning, and asks how Americans can and should criticize this culture and the texts it creates. In determining if a judicial opinion is good or bad, he explores the possibility of cultural criticism, the nature of conceptual language, the character of economic and legal discourse, and the appropriate expectations for critical and analytic writing. White employs his unique approach by analyzing individual cases involving the Fourth Amendment of the United States constitution and demonstrates how a judge translates the facts and the legal tradition, creating a text that constructs a political and ethical community with its readers.

Against Human Rights

Abstract: Let me first explain what I am not attacking in this paper. I am not attacking, for instance, the right of free speech or any of the other specific rights listed in the U.S. Constitution's Bill of Rights or the United Nations' Charter. I am, rather, attacking any specific right's being called a ‘human right’. I mean to show that any such designation is not only fraudulent but, in case anyone might want to say that there can be noble lies, grossly wicked, amounting indeed to genocide.

The rise of modern Japan

Abstract: 1. The Tokugawa Legacy 2. Western Challenge, Japanese Response 3. The Overthrow of the Tokugawa, 1860-1868 4. Building a Modern State, 1868-1894 5. The Meiji Emperor and the Meiji Constitution, 1873-1904 6. Cultural Borrowing, 1860-1912 7. Industrialization: the First Phase, 1860-1930 8. Capitalism and Domestic Politics, 1890-1930 9. Independence and Empire, 1873-1919 10. Soldiers and Patriots, 1918-1933 11. The New Order in Japan, 1931-1945 12. An Empire Won and Lost, 1937-1945 13. Military Occupation, 1945-1952 14. Conservative Democracy and the American Alliance, 1951-1972 15. The Economic Miracle 16. The End of the Showa Era, 1971-1989

The Politics of Justification

Abstract: THE PRACTICE OF POLITICAL JUSTIFICATION is not just for philosophers, and it does not simply lie behind (as we may hope) our political arrangements. Commitments to reason giving and reason demanding inform some of our most valuable political practices. Judicial review, most obviously, helps ensure that legislative and executive acts are reasonable in constitutional terms: In court it is not the fact of power but the display of reasons and evidence that counts. Not only the courts, but also Congress and the executive branch sometimes (and quite properly) conscientiously justify their actions in constitutional terms. Constitution aside, much that takes place in and around legislatures, elections, and other political fora can be understood as efforts to justify particular policies and programs.1 "Liberals demand," as Jeremy Waldron puts it, "that the social order should in principle be capable of explaining itself at the tribunal of each person's understanding."2 Liberal, democratic politics is not only about individual rights and limited govemment, it is also about justification, but not about any kind of justification at all. Liberal political justification, even in its ideal form, should be understood politically this article considers why and how. Liberal contractualists typically seek justifications that are widely acceptable to reasonable people with a broad range of moral, philosophical, and religious commitments.3 The aim is reasonable agreement: to be both reasonable and agreeable in a widely pluralistic society.4 The appropriate means is a process of reasoning that is publicly accessible, but genuinely justificatory.

Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy

Abstract: The United States Constitution was designed to secure the rights of individuals and minorities from the tyranny of the majority--or was it? Jennifer Nedelsky's provocative study places this claim in an utterly new light, tracing its origins to the Framers' preoccupation with the protection of private property. She argues that this formative focus on property has shaped our institutions, our political system, and our very understanding of limited government.

The minority of Henry III

Abstract: This is an account of the period in English history that determined the course of the English monarchy and set in motion the forces that ultimately led to parliamentary government. Aimed at students and general readers interested in British Medieval and constitutional history. Henry came to power in 1216 aged just nine. The crown was in great danger. It faced financial ruin, a rampaging French prince and enormous power in the hands of the magnates. The English Kingdom was on the edge of disintegrating into a series of principalities with the king as primus inter pares. However, by the time Henry came of age in 1227 his rule was unchallenged. The structure of government had been rebuilt and the Crown's resources reassembled. Moreover, it was in this period that Magna Carta came to be accepted by both King and barons as fundamental to the constitution. It embodied notions of royal restraint and baronial consent which came to form a permanent part of practical political thinking.

Elite Interaction and Constitution Building in Consociational Democracies

Abstract: This paper uses game theory to provide a common framework to address three questions: (a) Under what conditions is it possible for political elites in segmented societies to pursue accommodating st...

Conceptual Change and the Constitution

Abstract: The linguistic and conceptual dimension of the founding of America are examined in this book. Historians and political scientists analyze political discourse from the Revolution to ratification and suggest that out of the arguments and debates of the period came the American Constitution.

British Government and the Constitution

Abstract: Like the immensely successful previous edition of this highly respected work, this seventh edition of British Government and the Constitution has been jointly prepared by Colin Turpin and Adam Tomkins. Th e book has been thoroughly updated. It takes fully into account constitutional developments under the Coalition Government and examines the most recent case law of the Supreme Court, the European Court of Justice and the European Court of Human Rights. While it includes extensive material and commentary on contemporary constitutional practice, Turpin and Tomkins is a book that covers the historical traditions and the continuity of the British constitution as well as the current tide of change. Designed principally for law students, the book includes substantial extracts from parliamentary and other political sources, as well as from legislation and case law. As such it is also ideal for politics and government students. With its fresh design the book provides a full yet accessible account of the British constitution at a fascinating moment in its ongoing development. From Public Law ’s review of the 6th edition:

The Making of Americans, the Teaching of English, and the Future of Culture Studies

Abstract: WAS INTERESTED to find that, although "Constitutional Convention," "constitutional monarchy," and "Constitution of the United States" were three items listed under "What literate Americans know" in Professor E. D. Hirsch's provocative book Cultural Literacy, the Constitution was not an index entry. In other words, constitutional matters did not form part of Hirsch's own thinking in the making of his argument. There is nothing in his index between "Conservatism" and "Constructive Hypothesis."' It is my opinion that, if one is going to speak for or plan for that complicated thing called an "American," one must think of his or her relationship to the Constitution. In this part of my paper, I consider the argument of the brilliant reinterpretation of the Constitution in Professor Bruce Ackerman's forthcoming book Discover the Constitution.2 Ackerman's understanding of the Constitution is dualist and exceptionalist. The dualism is between normal everyday politics where We the People are not much involved, and the great exceptional moments in political practice--constitutional politics -where We the People are mobilized and involved in the process of change through higher lawmaking. These involvements of We the People in the law are also managements of crisis. Although We the People were mobilized at the time of Reconstruction, it was the crisis of a possible impeachment of the president that brought the Constitutional Amendments. Similarly, in spite of the electoral mobilization of We the People, it was the crisis of a possible court-packing that brought in the activist welfare state of the New Deal. And the changes, from a federalist division of powers, through a nationalist separation of powers, to the consolidation of presidential power, were all the time being reclaimed into the continuation of normal political practice, where We the People are not much involved. In the modern context at New Literary History, 1990, 21: 781-798

A bill of rights for Britain

Abstract: Dworkin shows how liberty has been eroded steadily in Britain over the last ten years - through a more restrictive Official Secrets Act, through political censorship of broadcasting, through the intolerance of public demonstrations and protest, through a Prevention of Terrorism Act which allows suspects to be detained incommunicado for two days, and then for a further five days without being allowed to see a lawyer in private. He also shows how the government have imposed moral restrictions which result in outrages such as Clause 28. He argues that Britain needs a written constitution, on line with the European Charter of Human Rights. This is a polemic against the British record on civil rights, and a powerful argument for legal intergration with Europe. The author also wrote "Taking Rights Seriously" and "The Philosophy of Law".

The making of women trade union leaders

Abstract: A trade union's constitution is intended to produce its leaders in a democratic and even-handed manner, but the reality for women is one of inequality. They remain almost invisible in senior positions in British unions. The social processes by which women do or do not progress in a union's career structure are investigated through a case study of SOGAT ‘82.

The last of the fathers : James Madison and the Republican legacy

Abstract: List of illustrations Preface Prologue 1. The character of the good statesman 2. The character of the good republic: justice, stability, and the constitution 3. Retrospect and prospect: Congress and the perils of popular government 4. Memory and meaning: nullification and the lost world of the founding 5. The republic transformed: population, economy, and society 6. Accommodation: the old dominion 7. Despair: the peculiar institution 8. Legacy: the strange career of William Cebell Rives Epilogue Acknowledgements Index.

The Silence of Constitutions : Gaps, 'abeyances' and political temperament in the maintenance of government

Abstract: Preface 1. The Concept and Practice of Constitutional Abeyances 2. Constitutional Abeyances and Crisis Conditions - The Early Stuart Constitution 3. Constitutional Abeyances and Crisis Conditions - The Imperial Presidency 4. Constitutional Gaps and the Arts of Prerogative 5. The Theory of Abeyances and Modern Constitutional Unsettlement in Britain and the United States Bibliography.

Situation and Human Existence: Freedom, Subjectivity and Society

Abstract: Part 1 Individual situations: Marcel - embodiment and situation Sartre - individual constitution of situation. Part 2 Social situations: Beauvoir - the weight of situation Merleau-Ponty - situation and social world Sartre - praxis in situation.

A Union of Interests: Political and Economic Thought in Revolutionary America

Abstract: From the onset of the Revolution in 1776 to the inauguration of the federal government in 1789, the American political culture was transformed. The movement for an effective continental republic is here linked to the groundswell for development and economic freedom set off by the Revolution. A Union of Interests reconstructs the discourse of American federalism, a discourse grounded in the debate over the role of government in the regulation of the economy. Cathy Matson and Peter Onuf integrate analyses of economic ideas and interests with many of the critical problems facing the union after the war such as jurisdictional disputes, threats of secession, and new prospects for frontier settlement. The revolutionary ideology that had justified the creation of sovereign states under the Articles of Confederation seemed increasingly "artificial" in light of the pressing need to create a "natural," extended republic that would be truer to the changing circumstances of the American people. The authors demonstrate that the movement for the Constitution drew upon increasingly popular political-economic ideas that sought to reconcile the apparent conflicts between a national interest and the "enlightened" self-interest of citizens. A pivotal chapter argues that the Constitutional Convention was itself both a product of this broad public discussion about America's future and a contribution to it in which the founders debated the limits to which they should compromise their distinct goals to fit this emerging vision.

Law, science, and humanity: The normative foundation of social science in law.

Abstract: Opposition by the American Psychological Association and the American Psychology-Law Society to the nomination of Robert Bork to the Supreme Court would have been justified on normative grounds by the inconsistency of Bork's views with the values underlying the social science in law (SSL) movement. SSL and the Chicago school of law and economics share realist beliefs about the social and political foundations of judicial behavior and the desirability of systematic empirical study as a means of facilitating the administration of justice, but the normative assumptions of the two schools of thought differ. Whereas the Chicago school, with which Bork is identified, reveres wealth maximization. SSL is intended to promote the values fundamental to the Constitution (e.g., respect for human dignity) and reverence for the law as an institution that reifies our sense of community.

Judicial review and the law of the constitution

Abstract: In this book, the author presents a new interpretation of the origin of judicial review. She traces the development of judicial review from American independence through the tenure of John Marshall as Chief Justice, showing that Marshall's role was far more innovative and decisive than has yet been recognized. According to the author all support for judicial review before Marshall contemplated a fundamentally different practice from that which we know today. Marshall did not simply reinforce or extend ideas already accepted but, in superficially minor and disguised ways, effected a radical transformation in the nature of the constitution and the judicial relationship to it. The author argues that originally constitutional limits were understood to be a statement of first political principles committed to writing. Through carefully crafted opinions and without public recognition Marshall transformed these principles into supreme written law. Simultaneously he changed judicial review from the defense of principle in circumstances of clear violation into routine application and interpretation of consititional text. The last chapter probes the implications of this analysis for contemporary controversies about judicial review.

Brazil's New Constitution: An Exercise in Transient Constitutionalism for a Transitional Society

Abstract: After more than two decades of authoritarian military rule, Brazil has finally completed its incredibly slow transition from dictatorship to democratic government.' On November 15, 1989 the entire Brazilian electorate,2 in contradistinction to one restricted to generals or legislators, had its first opportunity in 29 years to vote directly for a presidential candidate. Because none of the 21 candidates received a majority, a runoff election was held on December 17, 1989; it resulted in the election of Fernando Collor de Mello, a populist 40-year old former governor of the small northern state of Alagoas. The election was held pursuant to Brazil's new Constitution, which provided the critical framework for restoration of full democracy. In this respect, the Constitution wvorked well. Although the elections were hotly contested, no one seriously contests the legitimacy of Collor's presidential mandate. The new Constitution is Brazil's seventh or eighth constitution, depending upon whether one counts a constitutional amendment that redrafted the entire constitution as a new constitution or as an

Reform and repression under the Free French: economic and political transformation in the Côte d'Ivoire, 1942–45

Abstract: Few dispute the proposition that the Second World War marked the beginning of the end of colonialism in Africa. The thesis developed by Hodgkin (1956), Crowder (1968, 1978) and Schachter-Morgenthau (1964)—that coalitions of African veterans, disgruntled planters, peasants and chiefs gave rise to anti-colonialist, nationalist political movements in the immediate post-war era—has not been seriously challenged. The general acceptance of this view has resulted in a neglect of the history of the colonies during the war years themselves. While there is now a growing interest in this subject, most studies of the independence movements begin with the emergence, in 1946, of recognisable political parties in British and French Africa. They take as starting points such visible events as the Brazzaville Conference, the 1946 French Constitution, the launching of the Convention Peoples Party in Ghana, or the founding of the Rassemblement Democratique Africaine (RDA) in Bamako. What is needed now are thorough case studies of the specific policies and practices of the imperial powers during the Second World War and a consideration of the extent to which they acted as internal catalysts in the struggle for independence. This article, which is offered as a contribution to that end, looks at one chapter in the war experience of the Cote d'Ivoire.