Showing papers on "Constitution published in 1991"

A Critique of 'Our Constitution is Color-Blind'

Abstract: This article critically examines the United States Supreme Court’s legal doctrine of "color-blind constitutionalism" Professor Gotanda argues that the United States Supreme Court’s adherence to color-blind constitutionalism disregards the subtleties and nuances of race, ignores institutional racism and contributes to racial subjugation Five themes related to color-blind constitutionalism are identified and discussed: (i) the distinction between private and public conduct, (ii) the nonrecognition of race (whereby a person’s race is identified but discounted or not considered), (iii) racial categories (race as a social construct), (iv) the Supreme Court's focus on "formal-race" and its unconnectedness to social reality and (v) racial social change (discussing assimilation versus diversity) This article concludes with a discussion on alternatives to color-blind constitutionalism

The Cambridge History of Political Thought 1450–1700

Abstract: Introduction J. H. BURNS PART I. RENAISSANCE AND COUNTER-RENAISSANCE: 1. Humanism and political theory ANTHONY GRAFTON 2. Italian political thought, 1450-1530 NICOLAI RUBINSTEIN 3. Law DONALD R. KELLEY 4. Transalpine humanism BRENDAN BRADSHAW 5. Scholasticism: survival and revival J. H. BURNS PART II. RELIGION, CIVIL GOVERNMENT, AND THE DEBATE ON CONSTITUTIONS: 6. Christian obedience and authority, 1520-50 FRANCIS OAKLEY 7. Calvinism and resistance theory, 1550-80 ROBERT KINGDON 8. Catholic resistance theory, ultramontanism, and the royalist response, 1580-1620 J. H. M. SALMON 9. Constitutionalism HOWELL A. LLOYD 10. Sovereignity and the mixed constitution: Bodin and his critics JULIAN H. FRANKLIN 11. Utopianism J. C. DAVIES PART III. ABSOLUTISM AND REVOLUTION IN THE SEVENTEENTH CENTURY: 12. Absolutism and royalism J. P. SOMMERVILLE 13. England: ancient constitution and common law Corinne C. Weston 14. Leveller democracy and the puritan revolution DAVID WOOTTON 15. English republicanism BLAIR WORDEN PART IV. THE END OF ARISTOTELIANISM: 16. Tacitism, scepticism, and reason of state Peter Burke 17. Grotius and Selden RICHARD TUCK 18. Hobbes and Spinoza NOEL MALCOLM PART V. NATURAL LAW AND UTILITY: 19. Pufendorf ALFRED DUFOUR 20. The reception of Hobbes MARK GOLDIE 21. Locke JAMES TULLY.

The New European Community: Decisionmaking And Institutional Change

Abstract: * Institutional Change in Europe in the 1980s Robert O. Keohane and Stanley Hoffmann. * Negotiating the Single European Act Andrew Moravcsik. * The European Commission Peter Ludlow. * The EC Council: The Communitys Decisionmaking Center Wolfgang Wessels. * Sovereignty and Accountability in the European Community Shirley Williams. * The Making of a Constitution for Europe G. Federico Mancini.

The Constitution of Expert-Novice in Scientific Discourse!

Abstract: This paper argues that an examination of expert-novice relationships in unfolding interaction should not proceed from the static and unidirectional view that knowledge and status are distributed as functions of a priori categories such as age, gender, and hierarchical rank. Although analysis of interactional sequences from the group meetings of a university physics team reveals the co-occurrence of professional status and expertise in some segments of the data, we show, through a conversation analytic approach, that the constitution of expert-novice in dynamic interaction is a much more complicated, shifting, moment-by-moment reconstruction of Self and Other, whether within a speaker's talk or between speakers. We demonstrate that the constitution of a participant as expert at any moment in ongoing interaction can also be a simultaneous constitution of some other participant (or participants) as less expert, and that these interactionally achieved identities are only candidate constitutions of Self and Other until some next interactional move either ratifies or rejects them in some way. This way of viewing expert-novice relations can help account not only for the bidirectionality postulated in those models of apprenticeship, socialization, and learning which are based on activity theory but also for change and innovation in communities of practice. The implication for research raised by this study is that the analysis of language use ought to go beyond the extrinsic social, cultural, and biological identities of speakers and recipients; it should include an analysis of how utterances constitute these identities and how utterances are organized despite these identities.

Eunomia: New Order for a New World

Abstract: Part 1 Society: Society and words society and reason society self-creating dilemmas of identity and power dilemmas of will and order dilemma of becoming society and humanity. Part 2 Constitution: the dimensions of reality the dimensions of the constitution the social exchange the generic principles of a constitution the constituting of modern international society the socializing of modern international society humanity and law. Part 3 Well-being: social order legal order international economy international culture humanity and its future synopsis.

The Fate of Liberty: Abraham Lincoln and Civil Liberties

Abstract: If Abraham Lincoln was known as the Great Emancipator, he was also the only president to suspend the writ of habeas corpus. Indeed, Lincoln's record on the Constitution and individual rights has fueled a century of debate, from charges that Democrats were singled out for harrassment to Gore Vidal's depiction of Lincoln as an "absolute dictator." Now, in The Fate of Liberty, one of America's leading authorities on Lincoln wades straight into this controversy, showing just who was jailed and why, even as he explores the whole range of Lincoln's constitutional policies. Mark Neely depicts Lincoln's suspension of habeas corpus as a well-intentioned attempt to deal with a floodtide of unforeseen events: the threat to Washington as Maryland flirted with secession, distintegrating public order in the border states, corruption among military contractors, the occupation of hostile Confederate territory, contraband trade with the South, and the outcry against the first draft in U.S. history. Drawing upon letters from prisoners, records of military courts and federal prisons, memoirs, and federal archives, he paints a vivid picture of how Lincoln responded to these problems, how his policies were actually executed, and the virulent political debates that followed. Lincoln emerges from this account with this legendary statesmanship intact--mindful of political realities and prone to temper the sentences of military courts, concerned not with persecuting his opponents but with prosecuting the war efficiently. In addition, Neely explores the abuses of power under the regime of martial law: the routine torture of suspected deserters, widespread antisemitism among Union generals and officials, the common practice of seizing civilian hostages. He finds that though the system of military justice was flawed, it suffered less from merciless zeal, or political partisanship, than from inefficiency and the friction and complexities of modern war. Drawing on a deep understanding of this unique period, Neely takes a comprehensive look at the issues of civil liberties during Lincoln's administration, placing them firmly in the political context of the time. Written with keen insight and an intimate grasp of the original sources, The Fate of Liberty offers a vivid picture of the crises and chaos of a nation at war with itself, changing our understanding of this president and his most controversial policies.

Constitutionalism and Secession

Abstract: The Soviet Constitution guarantees a right to secede.' The American Constitution does not. Although some secessionists in the American South, invoking state sovereignty, claimed to find an implicit right to secede in the founding document, it was more common to invoke an extratextual and nonjusticiable "right to secede" said to be enshrined in the Declaration of Independence.2 In any case, no serious scholar or politician now argues that a right to secede exists under American constitutional law.3 It is generally agreed that such a right would undermine the Madisonian spirit of the original document, one that encourages the development of constitutional provisions that prevent the defeat of the basic enterprise.4 Eastern European countries are now deciding about the contents of proposed constitutions. They are often doing so in the context of profound cultural and ethnic divisions, both often defined at least roughly in territorial terms. These divisions have propelled

The Bill of Rights as a Constitution

Abstract: To many Americans, the Bill of Rights stands as the centerpiece of our constitutional order-and yet constitutional scholars lack an adequate account of it. Instead of being studied holistically, the Bill has been chopped up into discrete chunks of text, with each bit examined in isolation. In a typical law school curriculum, for example, the First, Ninth, and Tenth Amendments are integrated into an introductory survey course on \"Constitutional Law\"; the Sixth, Eighth, and much of the Fifth are taught in \"Criminal Procedure\"; the Seventh is covered in \"Civil Procedure\"; the takings clause is featured in \"Property\"; the Fourth becomes a course unto itself, or is perhaps folded into \"Criminal Procedure\" or \"Evidence\" (because of the judicially-created exclusionary rule); and the Second and Third are ignored.' When we turn from law school classrooms to legal scholarship, a similar pattern emerges. Each clause is typically considered separately, and some amendments-again, the Second and Third-are generally ignored by main-

Machiavelli and Republicanism: Milton's republicanism and the tyranny of heaven

Abstract: What was republicanism in seventeenth-century England? The term was rarely owned to, and was more commonly one of abuse. Yet there was a movement which needs a word. I mean by republicanism the movement of intellectual protest which opposed the rise of the Renaissance and Baroque monarchies of early modern Europe, and which, in articulating that opposition, drew extensively on the political writings and the political practices of classical antiquity. This was the republicanism whose vocabulary Niccolo Machiavelli had done more than any other writer of the Renaissance to shape. By 1600 Italian republicanism had lost its vitality, although remnants of it survived in Venice, whose constitution was admired elsewhere in Europe as a modern equivalent to that of republican Rome. In the seventeenth century it was in England that Machiavelli's ideas were most substantially developed and adapted, and that republicanism came once more to life; and out of seventeenth-century English republicanism there were to emerge in the next century not only a theme of English political and historical reflection – of the writings of the Bolingbroke circle and of Gibbon and of early parliamentary radicals – but a stimulus to the Enlightenment in Scotland, on the Continent, and in America. Before the civil wars of the 1640s, republicanism never appeared publicly in didactic or unambiguous form. Few people in Elizabethan or early Stuart England seem to have supposed that the rules of the ancient constitution could be fundamentally changed.

Machiavelli and Republicanism: Montesquieu and the new republicanism

Abstract: Montesquieu did for the latter half of the eighteenth Century what Machiavelli had done for his century, he set the terms in which republicanism was to be discussed. It goes without saying that it was a significantly different republicanism, not so much because of Montesquieu's doubts about Machiavelli's scholarship, but because their aims were not the same. To be sure, like all republicans they shared at least one polemical object, hostility to the Roman Catholic Church, but even here the reasons for their respective hatred were quite different. Machiavelli objected to the papacy's interference in Italian politics, and Christianity's lack of martial spirit. Montesquieu hated the Church for the cruelty of its persecutions, its intolerance, its obstruction of scientific learning and its superstitious practices and prejudices. Paganism did not therefore seem like an attractive alternative to him and he had no more use for political than for theological religiosity. This was thus not an aspect of Roman republicanism that was significant for him, as it certainly was for Machiavelli. The two authors also had different political enemies, even though republicanism might stand as a reproach to all of them. Machiavelli's contempt was directed at the incompetence of the petty rulers of the Italian city states, while Montesquieu excoriated the absolute monarchy created by Louis xiv . His great fear was not political impotence, but despotism, a regime to which Spain was rapidly descending and to which even France might fall prey.

Enterprise and American law, 1836-1937

Abstract: Preface Introduction: Classicism, Democracy, and the Rule of Law Part I: The Classical Corporation and State Policy I. Classical Political Economy and the Business Corporation 2. Vested Corporate Rights 3. Politics and Public Goods 4. The Corporate Personality 5. Limited Liability 6. Corporate Power and Its Abuse Part Ii: The Economic Constitution 7. A Moral Theory of Political Economy 8. The Classical Theory of Federalism 9. An Economic Interpretation of the Constitution Part Iii: The Rise of Regulated Industry 10. Market Failure and Constitutional Classicism: The Slaughter-House Cases 11. Regulation and Incorporation 12. The Railroads and the Development of Regulatory Policy 13. Federalism and Rate Discrimination Part Iv: The Political Economy of Substantive Due Process 14. Historical Explanation and Substantive Due Process 15. The American School of Political Economy 16. The Wages Fund 17. Market Failure and the Constitution Part V: The Labor Combination In American Law 18. Classical Theory and the Labor Cartel 19. Coercion and Its Meaning: Antitrust and the Labor Injunction Part Vi: The Antitrust Movement and the Theory of the Firm 20. American Merger Policy and the Failure of Corporate Law 21. The Classical Theory of Competition 22. The Rise of Industrial Organization 23. The Fixed-Cost Controversy 24. Potential Competition 25. Vertical Integration and Resale Price Maintenance Epilogue: Classical Enterprise in Decline Notes Index

Black's Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern

Abstract: Preface; The Pronunciation of Latin; Outline of Latin Pronunciations; Transcription System; Guide to Pronunciation Symbols; Text of Definitions; Appendices: Table of Abbreviations; Constitution of the United States; Time Chart of the United States Supreme Court.

Colonizing and transforming the criminal tribesman: the Salvation Army in British India

Abstract: Under colonial rule, the constitution of the notion of a criminal caste drew on prevailing discourses about crime, class, and work, as well as on British notions about the nature of Indian society. Transforming Indian communities into criminal castes involved the construction of a body of knowledge defining the nature, habits, and characteristics of criminal castes. Through the inculcation of habits of discipline, Salvation Army reformatories sought to reform criminal tribespeople into subjected and productive bodies. Processes of reform were linked to the spatiotemporal expansion of the British Empire and the constitution of new forms of productive relations.

On Reading the Constitution

Abstract: Introduction 1. How Not to Read the Constitution 2. Structuring Constitutional Conversations 3. Judicial Value Choice in the Definition of Rights 4. Seeking Guidance from other Disciplines: Law, Literature, and Mathematics 5. Reconstructing the Constitution as a Reader's Guide Notes Index of Cases General Index

Constitutionalism in Eastern Europe: An Introduction

Abstract: Since 1989, seven countries in Eastern Europe have undertaken the transition from one-party rule to constitutional democracy: Albania, Bulgaria, Czechoslovakia, Hungary, Poland, Romania, and Yugoslavia. Six of the seven are currently rewriting their constitutions. The exception is Hungary, although that country's constitution is very much a patchwork, and new constitutional efforts can be expected there, too, within the next few years. In addition, several of the constituent republics are writing or revising their constitutions, including the Czech and the Slovak Lands in Czechoslovakia and Croatia and Slovenia in Yugoslavia. Finally, the German Democratic Republic had made some progress toward creating a new constitution before the process was overtaken by unification. Altogether, therefore, we are dealing with at least a dozen constitution-making processes. This wave of constitution-making is not altogether unique. In the late 1700s, the individual American states, the United States itself, and France enacted a series of democratic constitutions. The wave of revolutions in 1848 also included brief constitutional epi-

Marriage, Law and Gender : A Feminist Inquiry

Abstract: A series of constitutional challenges to the exclusion of gay male and lesbian couples from the matrix of rights and responsibilities which comprise marriage were brought and failed twenty years ago. The most dramatic development to date in the campaign to establish a right to gay marriage occurred in May 1993, when the Hawaii Supreme Court ruled that, under the state constitution, marriage could not be limited to opposite-sex couples unless the state could demonstrate a compelling interest in doing so. A number of municipalities have adopted domestic partnership laws granting recognition for limited purposes to unmarried couples who met certain functional criteria roughly comparable to marriage. In reality, however, the definition of marriage is grounded on the social category of gender. Same-sex marriage could create the model in law for an egalitarian kind of interpersonal relation, outside the gendered terms of power, for many marriages.

The national security constitution : sharing power after the Iran-Contra Affair

Abstract: Was the Iran-Contra affair caused by executive lawlessness or legislative folly? Or did it result instead from structural defects in our national security decision-making system? In this important new book, Harold Koh argues that the affair was not aberrational but symptomatic of a chronic dysfunction in America's foreign policy process. Combining practical knowledge of government with insights from law, history, and political science, Koh presents the definitive historical and constitutional analysis of the Iran-Contra affair, the subsequent investigations, and the trial of Oliver North. He then discusses the implications of the Iran-Contra scandal for the constitutional conduct of national security policy and offers prescriptions to improve this decision-making system. Koh contends that the Iran-Contra affair arose not from Watergate, as many have claimed, but from Vietnam, for it was only the latest episode in a series of foreign policy decisions made by unrestrained executive discretion. Koh shows that throughout its history America has operated under a 'National Security Constitution,' a constitutionally defined national security process that views that administration of foreign affairs as a power shared by the president, Congress, and the courts. Yet the executive branch has increased its role in making foreign policy at the expense of the other branches, placing in jeopardy this vision of constitutional balance. Koh advocates a national security charter to reform the foreign policy-making process and offers innovative proposals about war powers, international agreements, emergency economic powers, intelligence oversight, and information control. His proposals would restrain the executive and restore and reinvigorate the constitutional roles of Congress and the federal judiciary in national security decision-making. This challenging book forces government decision-makers, scholars, and concerned citizens to reexamine the process by which the United States will conduct its foreign affairs into the next century.

America's constitutional soul

Abstract: Focusing on the elections of 1980, 1982, and 1984, Mansfield critiques contemporary conservatism for its ignorance of the political theory implicit in the Constitution. "Provides `food for thought' for both `left' and `right,' and in particular for the American citizens about whom this book is concerned."--Bradley A. Kletscher, 'Constitutional Commentary.' 'The Johns Hopkins Series in Constitutional Thought.' Sotirios A. Barber and Jeffery K. Tulis, Series Editors.

MacArthur's Japanese Constitution : a linguistic and cultural study of its making

Abstract: The Japanese constitution as revised by General MacArthur in 1946, while generally regarded to be an outstanding basis for a liberal democracy, is at the same time widely considered to be--in its Japanese form--an document which is alien and incompatible with Japanese culture. Using both linguistics and historical data, Kyoto Inoue argues that despite the inclusion of alien concepts and ideas, this constitution is nonetheless fundamentally a Japanese document that can stand on its own. "This is an important book...This is the most significant work on postwar Japanese constitutional history to appear in the West. It is highly instructive about the century-long process of cultural conflict in the evolution of government and society in modern Japan."--Thomas W. Burkman, Monumenta Nipponica

England: ancient constitution and common law

Abstract: A new history centring on law and government, pervasive respect for common law, and an increasingly confident and aggressive House of Commons – this congruence of elements nourished in Stuart England the doctrine of an ancient constitution. The authors of the new history were usually common lawyers with scholarly interests, often referred to as legal antiquaries, who interpreted the historical past from the standpoint of their own day. Assuming the antiquity of Englishmen's rights and liberties and their constant assertion through the centuries, they ransacked historical records for the requisite evidence and interpreted their findings in light of common law. Their list of rights and liberties, composing in toto the ancient constitution, proved surprisingly protean, ranging from freedom of speech in parliament to its regular meetings and, after civil war directed political thought into new channels, even legal rights concerned with parliamentary representation and the role of the House of Commons in law making – subjects little scrutinised in the pre-1642 political world. Whether the human source of these rights and liberties was the king or community became a leading question in Stuart political thought. According to the Jacobean House of Commons, reasoning from common law, the rights and liberties of the commons of England, enjoyed from time immemorial, were an inheritance from their ancestors, a statement making the community their human source. James I's rejoinder expressed impatience with ‘anti-monarchical’ words about ancient liberties unless it were added that he and his ancestors had granted them; but the king pledged, of his own will, to respect privileges enjoyed by long custom and lawful precedent.

Farrar's Company law

Abstract: "Incorporation and its consequences. The corporate constitution. Financial structure and membership. Corporate power and its regulation. Structural problems and change. Corporate collapse. The International dimension."

State and Society under Stalin: Constitutions and Elections in the 1930s

Abstract: It is clear that tested by the Constitution of the Soviet Union as revised and enacted in 1936, the USSR is the most inclusive and equalised democracy in the world. Sidney and Beatrice Webb, 1937 Many who lauded Stalin's Soviet Union as the most democratic country on earth lived to regret their words. After all, the Soviet Constitution of 1936 was adopted on the eve of the Great Terror of the late 1930s; the “thoroughly democratic” elections to the first Supreme Soviet permitted only uncontested candidates and took place at the height of the savage violence in 1937. The civil rights, personal freedoms, and democratic forms promised in the Stalin constitution were trampled almost immediately and remained dead letters until long after Stalin's death.