In recent years, some have asked "Are we all originalists now?" and many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. In Fidelity to Our Imperfect Constitution, James Fleming rejects originalisms-whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, he shows the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. Fleming argues that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity.

In six lectures, Aiken compares the constitutions of Great Britain and the United States and also examines their similarities and differences in terms of government, (The House of Commons and the House of Representatives, the Senate and the House of Lords), religion, slavery, elections, the judiciary and other topics. "The author's design was to compare our limited monarchy with the greatest modern republic, not in order to disparage either, but to elucidate both to a popular audience of his countrymen (...) The subject has an intrinsic claim to attention. It embraces a variety of topics, both entertaining and important, and historical truths of immense practical value, concerning which the people are deeply interested and too often misled." --(Preface, viii Contents: Lecture One: Introductory Lecture Two: Provincial Institutions. Outline of American Constitution. Lecture Three: Elective Franchise. Legislative Assemblies. Lecture Four: The Executive Power. Lecture Five: Law-Religion. Lecture Six: Social Influence of Political Institutions. Peter Freeland Aiken (1799?-1877) was a Scottish advocate for some time, and later moved to Bristol, England. He was the author of The People's Charter, and Old England For Ever (1839) and War: Religiously, Morally and Historically Considered (1850).

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aA must-read for anyone interested in the intersection of law and politics. . . . [Hasenas] is an important framework against which election law scholars will react and upon which they will build for some time to come.a
--"Michigan Law Review"

"Hasen wrote this concise but substantive volume to assess the history, at least since 1901, of the Supreme Court's intervention in the political process."
--"The Law and Politics Book Review"

"A major contribution to the field of election law."
--Thomas E. Mann, The Brookings Institution

In the first comprehensive study of election law since the Supreme Court decided "Bush v. Gore," Richard L. Hasen rethinks the Court's role in regulating elections. Drawing on the case files of the Warren, Burger, and Rehnquist courts, Hasen roots the Court's intervention in political process cases to the landmark 1962 case, Baker v. Carr. The case opened the courts to a variety of election law disputes, to the point that the courts now control and direct major aspects of the American electoral process.

The Supreme Court does have a crucial role to play in protecting a socially constructed "core" of political equality principles, contends Hasen, but it should leave contested questions of political equality to the political process itself. Under this standard, many of the Court's most important election law cases from Baker to Bush have been wrongly decided.

Good Administration and the Council of Europe: Law, Principles, and Effectiveness examines the existence and effectiveness of written and unwritten standards of good administration developed within the framework of the Council of Europe (CoE) and in the case law of the European Court of Human Rights. These standards - called 'pan- European general principles of good administration' - cover the entire range of general organizational, procedural, and substantive legal institutions meant to ensure a democratically legitimized, open, and transparent administration respecting the rule of law. They are about the 'limiting function' of administrative law: its function to protect individuals from arbitrary power, to legitimize administrative action, and to combat corruption. This book analyses the sources and functions of the pan-European general principles of good administration and seeks to uncover how deeply they are rooted in the domestic legal systems of the CoE Member States. It comprises 28 country reports dedicated to an in-depth exploration of the impact of these standards on the national legal systems of the Member States written by respective experts on these systems. It argues that the pan-European general principles of good administration lead to a certain harmonization of the legal orders of the Member States with regard to the limiting function of administrative law despite the many fundamental differences between their administrative and legal systems. It comes to the further conclusion that the pan-European general principles of good administration can be considered as a concretization of the founding values of the CoE and describes the 'administrative law obligations' a Member State entered into when joining the CoE.

Throughout this century, organized interest groups have played a central role in U.S. Supreme Court litigation on issues of civil rights and liberties. Yet in recent decades, the Court has been less willing to protect many rights and has discouraged the use of federal court forums. With the federal courts inhospitable or unavailable, interest groups have had greater incentive to enter state judiciaries. Proponents of the new judicial federalism urge groups and other litigants to seek greater individual protection based on state constitutions than that required under federal constitutional standards. Farole examines the conditions under which groups are likely to enter state litigation. How the Supreme Court decisions provide incentives or disincentives for organizational action in state judiciaries as well as how other factors specific to organizations condition their willingness and ability to enter state courts is of particular concern. Farole also examines whether groups assert rights claims based on state constitutional law. He provides a comparative analysis of group litigation in two issue areas--eminent domain and obscenity--in five states. Evidence is taken from a variety of sources including interviews, interest group and court files, and published court opinions. The analysis provides insights into the ability of interest groups to remain active in rights litigation by turning their lobbying efforts to state judiciaries. This book is of particular interest to political scientists and academic lawyers concerned with federalism, interest groups, judicial politics, and civil liberties.

The idea of administrative justice is central to the British system of public law, more embracing than judicial review, or even administrative law itself. It embraces all the mechanisms designed to achieve a proper balance between the exercise of public and quasi-public power and those affected by the exercise of that power. This book contains revised versions of the papers given at the International Conference on Administrative Justice held in Bristol in 1997. Forty years after the publication of the Franks Committee report on Tribunals and Inquiries, the conference reflected on developments since then and sought to provoke debate about how the future might unfold. Participants included policy makers, tribunal chairs and ombudsmen, other decision-takers as well as academics - a formidable combination of expertise in the operation of the administrative justice system. Among the themes addressed in the papers are the following: the effect of the changing nature of the state on current institutions; human rights and administrative justice; the relationship between decision taking, reviews of decisions, and the adjudication of appeals; and the overview of administrative justice, taking into account lessons from abroad. The new millenium provides an opportunity for the reappraisal of the British system of administrative justice; this volume presents an indispenable repository of the ideas needed to understand how that system should develop over the coming years. Contributors: Michael Adler, Margaret Allars, Dame Elizabeth Anson, Lord Archer of Sandwell, Michael Barnes, Julia Black, Christa Christensen, David Clark, Gwynn Davis, Godfrey Cole, Suzanne Day, Julian Farrand, Tamara Goriely, Michael Harris (Ed), Neville Harris, Tony Holland, Terence Ison, Christine Lally, Douglas Lewis, Rosemary Lyster, Aileen McHarg, Walter Merricks, Linda Mulcahy, Stephen Oliver, Alan Page, Martin Partington (Ed), David Pearl, Jane Pearson, Paulyn Marrinan Quinn, John Raine, Andrew Rein, Alan Robertson, Roy Sainsbury, John Scampion, Chris Shepley, Caroline Sheppard, Patricia Thomas, Brian Thompson, Nick Wikeley, Tom Williams, Jane Worthington, Richard Young.

A constitutional order is a system of systems. It is an aggregate of interacting institutions, which are themselves aggregates of interacting individuals. In The System of the Constitution, Adrian Vermeule analyzes constitutionalism through the lens of systems theory, originally developed in biology, computer science, political science and other disciplines. Systems theory illuminates both the structural constitution and constitutional judging, and reveals that standard views and claims about constitutional theory commit fallacies of aggregation and are thus invalid. By contrast, Vermeule explains and illustrates an approach to constitutionalism that considers the systemic interactions of legal and political institutions and of the individuals who act within them.

This book analyzes the role of strategic human rights litigation in the dissemination and migration of transnational constitutional norms and provides a detailed analysis of how transnational human rights advocates and their local partners have used international and foreign law to promote abolition of the death penalty and decriminalization of homosexuality. The "sharing" of human rights jurisprudence among judges across legal systems is currently spreading emerging norms among domestic courts and contributing to the evolution of international law. While prior studies have focused on international and foreign citations in judicial decisions, this global migration of constitutional norms is driven not by judges but by legal advocates themselves, who cite and apply international and foreign law in their pleadings in pursuit of a specific human rights agenda. Local and transnational legal advocates form partnerships and networks that transmit legal strategy and comparative doctrine, taking advantage of similarities in postcolonial legal and constitutional frameworks. Using examples such as the abolition of the death penalty and decriminalization of same-sex relations, this book traces the transnational networks of human rights lawyers and advocacy groups who engage in constitutional litigation before domestic and supranational tribunals in order to embed international human rights norms in local contexts. In turn, domestic human rights litigation influences the evolution of international law to reflect state practice in a mutually reinforcing process. Accordingly, international and foreign legal citations offer transnational human rights advocates powerful tools for legal reform.

This collection of essays, the result of a John Marshall Symposium held in conjunction with the state of West Virginia's celebration of the Bicentennial of the U.S. Constitution, examines the contributions of John Marshall and the early Supreme Court from a variety of political and methodological perspectives that have been encouraged by current approaches to constitutional theory and history. It fills a gap in analysis of the constitutional foundations laid by the Marshall Court. It reflects the continuities and changes that have transpired in legal scholarship and political philosophy over the last three decades. Divided into analyses of Marshall's legal decisions, his political philosophy, and his methods of legal interpretation, the essays represent a strong and healthy diversity of opinion on Marshall's contribution to American political and legal development. The essays consider the question of how Marshall's judicial reasoning can be best applied to the continuing process of interpreting the Constitution. Marshall's contributions thus become the starting point for an exercise in political engagement. While often celebrating Marshall's achievements, the contributors attempt to move beyond mere celebration toward a critical analysis of constitutional meaning and political philosophy. Legal scholars and historians alike will welcome this cogent collection and the insight it provides into the early development of constitutional thought and interpretation.

The book considers the changes which national sovereignty has undergone through the supranational European integration. In various contributions by renowned academics and high judges demonstrate the serious impacts of supranationality on the EU member states and even on third countries which are connected with the EU by international treaties. It becomes clear that primacy of EU law, the most significant expression of supra-nationality, collides with national sovereignty as anchored in the national constitutions. The studies clearly show that most member states do not fully deny EU law primacy but are aware of the need to find an adequate balance between the supranational and the national orders. The result from the analyses of the authors from various European countries is that the upcoming constitutional paradigm is "constitutional identity", a concept established by jurisprudence in Germany, France, Czech Republic (without being named so) and debated also in Poland which, herself, denies supranational impact on the national Constitution entirely. Studies on selected EU member states clarify the specific national approaches towards the limitations of their sovereignty as developed by the constitutional jurisprudence (Poland, Czech Republic, Hungary, Romania, Italy, Germany with comparative references to United Kingdom and France). It is illuminated that traditionally strong sovereignty concepts (UK, France) are considerably relativized and functionally opened towards the integration challenges. Basic issues are furthermore reflected, such as the supranational impact on the State's power to reform its Constitution, the relation of national and constitutional identity and the national and supranational perspectives of identity. The book also includes Europe beyond the EU by research on the supranational character of association treaties (from a Ukrainian perspective) and on the Europeanization of a third country preparing EU membership (Albania).

A thorough descriptive list of 225 printed constitutions, statutes, session acts and resolutions passed by properly authorized bodies of the Cherokee Nation, Chickasaw Nation, Choctaw Nation, Creek (or Muskogee Nation), Indian Territory, Nez Perce tribe, Omaha Tribe, Osage Nation, Ottawa Tribe, Sac and Fox nation, Seminole Nation, Seneca Nation, State of Sequoyah, Stockbridge and Munsee Tribe and the Winnebago Tribe. Each chapter begins with a brief history of the tribe or nation and each entry contains useful biographical, historical and bibliographical notes. The author observes that many of these items have not been "recorded in any connection, and the scant biographical information about the others are widely scattered."

Does an offender have the "right" to be punished? "The right to be punished" may sound like an oxymoron, but it is not necessarily so. With the emergence of modern criminal law, the offender gained the "right" to be punished by rational criminal law rather than being lynched by an angry mob. The present-day offender may have the "right" to be punished by doctrinal sentencing rather than being subjected to verdicts based on vague, unclear, and uncertain principles. In modern criminal law, the imposition of criminal liability follows accurate and strict rules, whereas there are no similar rules for the imposition of punishment. The process of sentencing is vague and obscure, as are the considerations used for the imposition of punishments. The objective of the present book is to propose a comprehensive, general, and legally sophisticated theory of modern doctrinal sentencing. The challenges of such a legal theory are plenty and complex. In addition to increasing clarity and certainty, modern doctrinal sentencing must deal with modern types of delinquency (e.g. organized crime, recidivism, corporate offenders, high-tech offenses, etc.) and modern principles of criminal law. Modern doctrinal sentencing must serve to ensure optimal sentencing.

This work deals with the temporal effect of judicial decisions and more specifically, with the hardship caused by the retroactive operation of overruling decisions. By means of a jurisprudential and comparative analysis, the book explores several issues created by the overruling of earlier decisions. Overruling of earlier decisions, when it occurs, operates retrospectively with the effect that it infringes the principle of legal certainty through upsetting any previous arrangements made by a party to a case under long standing precedents established previously by the courts. On this account, in the recent past, a number of jurisdictions have had to deal with the prospect of introducing in their own systems the well-established US practice of prospective overruling whereby the court may announce in advance that it will change the relevant rule or interpretation of the rule but only for future cases. However, adopting prospective overruling raises a series of issues mainly related to the constitutional limits of the judicial function coupled by the practical difficulties attendant upon such a practice. This book answers a number of the questions raised by this practice. It makes use of the great reservoir of foreign legal experience that furnishes theoretical and practical ideas from which national judges may draw their knowledge and inspiration in order to be able to advise a rational method of dealing with time when they give their decisions.

This book presents the results of research project financed by the Hague Institute for the Internationalization of Law (HiiL) and carried out at the Tilburg Law and Economics Center (TILEC) of Tilburg University. The project team shows that globalization, instead of threatening national legal systems, put them in a new role and gives them continuing relevance. First of all, once one takes a more functional view of the law, based on law and economics and comparative law literature, harmonization or unification of national legal systems is no longer a foregone conclusion. Secondly, fundamental constitutional principles continue to bear in the era of multi-level and transnational governance: they become governance principles, divorced from specific institutional settings. Finally, looking beyond regulatory competition and comparative law, legal emulation provides a rich and fruitful model to explain the interplay between legal systems. This book explores these three themes, both at a theoretical level and in the light of specific examples.

The last decade has seen radical changes in the way we are governed. Reforms such as the Human Rights Act and devolution have led to the replacement of one constitutional order by another. This book is the first to describe and analyse Britain's new constitution, asking why it was that the old system, seemingly hallowed by time, came under challenge, and why it is being replaced. The Human Rights Act and the devolution legislation have the character of fundamental law. They in practice limit the rights of Westminster as a sovereign parliament, and establish a constitution which is quasi-federal in nature. The old constitution emphasised the sovereignty of Parliament. The new constitution, by contrast, emphasises the separation of powers, both territorially and at the centre of government. The aim of constitutional reformers has been to improve the quality of government. But the main weakness of the new constitution is that it does little to secure more popular involvement in politics. We are in the process of becoming a constitutional state, but not a popular constitutional state. The next phase of constitutional reform, therefore, is likely to involve the creation of new forms of democratic engagement, so that our constitutional forms come to be more congruent with the social and political forces of the age. The end-point of this piecemeal process might well be a fully codified or written constitution which declares that power stems not from the Queen-in Parliament, but, instead, as in so many constitutions, from 'We, the People'. The old British constitution was analysed by Bagehot and Dicey. In this book Vernon Bogdanor charts the significance of what is coming to replace it. The expenses scandal shows up grave defects in the British constitution. Vernon Bogdanor shows how the constitution can be reformed and the political system opened up in'The New British Constitution'.