Weak Constitutionalism

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Weak Constitutionalism

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Author : Joel Colón-Ríos
language : en
Publisher: Routledge
Release Date : 2012-06-14

Weak Constitutionalism written by Joel Colón-Ríos and has been published by Routledge this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-06-14 with Law categories.

It has been frequently argued that democracy is protected and realized under constitutions that protect certain rights and establish the conditions for a functioning representative democracy. However, some democrats still find something profoundly unsettling about contemporary constitutional regimes. The participation of ordinary citizens in constitutional change in the world's most "advanced" democracies (such as the United States, Canada, and the United Kingdom) is weak at best: the power of constitutional reform usually lies in the exclusive hands of legislatures. How can constitutions that can only be altered by those occupying positions of power be considered democratically legitimate? This book argues that only a regime that provides an outlet for constituent power to manifest from time to time can ever come to enjoy democratic legitimacy. In so doing, it advances a democratic constitutional theory, one that combines a strong or participatory conception of democracy with a weak form of constitutionalism. The author engages with Anglo-American constitutional theory as well as examining the theory and practise of constituent power in different constitutional regimes (including Latin American countries) where constituent power has become an important part of the left’s legal and political discourse. Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power will be of particular interest to legal/political theorists and comparative constitutional lawyers. It also provides an introduction to the theory of constituent power and its relationship to constitutionalism and democracy.

The Legitimacy Of The Juridical

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Author : Joel I.. Cólon-Ríos
language : en
Publisher:
Release Date : 2011

The Legitimacy Of The Juridical written by Joel I.. Cólon-Ríos and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011 with Constituent power categories.

This dissertation is about the democratic legitimacy of constitutional regimes. It asks and provides an answer to the question of which conditions need to be met for a juridical system and the constitution that embodies it to be considered legitimate from a democratic perspective. In so doing, it explores the relationship between liberal constitutionalism, democracy, and constitutional change. It argues that there is an irreconcilable tension between democracy and liberal constitutionalism which is exemplified in the amendment procedures of most modern constitutions. These procedures are not only characterized by a lack of participatory mechanisms, but by the inclusion of a set of requirements that are more difficult to meet than those followed when the constitution was originally adopted. This, it is argued, signals that contemporary constitutional regimes suffer from an important deficit of democratic legitimacy. The dissertation approaches this problem from the theory of constituent power, until recentlyignored by Anglo-American constitutional theory. In virtue of its connections to democracy, constituent power provides two basic criteria to assess the democratic legitimacy of a constitutional regime: (1) ' A constitutional regime should have a democratic pedigree'; (2) ' a constitutional regime should be susceptible to democratic re-constitution '. Accordingly, a constitutional regime can only have a claim to democratic legitimacy if it is based on a conception of constitutionalism that does not approach constituent power as a threat. This conception of constitutionalism ('weak constitutionalism') mandates a permanently open fundamental law, one that is always susceptible to re-constitution through highly participatory procedures, such as constituent assemblies convened 'from below'. The dissertation also considers the practical implications of the two conditions of democratic legitimacy in the context of constitution-making and constitutional reform.

The Legitimacy Of The Juridical

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Author : Joel I. Colón-Ríos
language : en
Publisher:
Release Date : 2008

The Legitimacy Of The Juridical written by Joel I. Colón-Ríos and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2008 with Constituent power categories.

This dissertation is about the democratic legitimacy of constitutional regimes. It asks and provides an answer to the question of which conditions need to be met for a juridical system and the constitution that embodies it to be considered legitimate from a democratic perspective. In so doing, it explores the relationship between liberal constitutionalism, democracy, and constitutional change. It argues that there is an irreconcilable tension between democracy and liberal constitutionalism which is exemplified in the amendment procedures of most modern constitutions. These procedures are not only characterized by a lack of participatory mechanisms, but by the inclusion of a set of requirements that are more difficult to meet than those followed when the constitution was originally adopted. This, it is argued, signals that contemporary constitutional regimes suffer from an important deficit of democratic legitimacy. The dissertation approaches this problem from the theory of constituent power, until recently ignored by Anglo-American constitutional theory. In virtue of its connections to democracy, constituent power provides two basic criteria to assess the democratic legitimacy of a constitutional regime: (1) A constitutional regime should have a democratic pedigree ; (2) a constitutional regime should be susceptible to democratic re-constitution . Accordingly, a constitutional regime can only have a claim to democratic legitimacy if it is based on a conception of constitutionalism that does not approach constituent power as a threat. This conception of constitutionalism ( weak constitutionalism ) mandates a permanently open fundamental law, one that is always susceptible to re-constitution through highly participatory procedures, such as constituent assemblies convened 'from below'. The dissertation also considers the practical implications of the two conditions of democratic legitimacy in the context of constitution-making and constitutional reform.

Constituent Power And The Law

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Author : Joel Colón-Ríos
language : en
Publisher: Oxford University Press
Release Date : 2020-03-26

Constituent Power And The Law written by Joel Colón-Ríos and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020-03-26 with Law categories.

Constituent power is the power to create new constitutions. Frequently exercised during political revolutions, it has been historically associated with extra-legality and violations of the established legal order. This book examines the relationship between constituent power and the law. It considers the place of constituent power in constitutional history, focusing on the legal and institutional implications that theorists, politicians, and judges have derived from it. Commentators and citizens have relied on the concept of constituent power to defend the idea that electors have the right to instruct representatives, to negate the doctrine of parliamentary sovereignty, and to argue that the creation of new constitutions must take place through extra-legislative processes, including primary assemblies open to all citizens. More recently, several Latin American constitutions explicitly incorporate the theory of constituent power and allow citizens, acting through popular initiative, to trigger constitution-making episodes that may result in the replacement of the entire constitutional order. Constitutional courts have also at times employed constituent power to justify their jurisdiction to invalidate constitutional amendments that alter the fundamental structure of the constitution and thus amount to a constitution-making exercise. Some governments have used it to defend the legality of attempts to transform the constitutional order through procedures not contemplated in the constitution's amendment rule, but considered participatory enough to be equivalent to 'the people in action', sometimes sanctioned by courts. Building on these findings, Constituent Power and the Law argues that constituent power, unlike sovereignty, should be understood as ultimately based on a legal mandate to produce a particular type of juridical content. In practice, this makes it possible for a constitution-making body to be understood as legally subject to popularly ratified substantive limits.

Democracy And Constitutions

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Author : Allan C. Hutchinson
language : en
Publisher: University of Toronto Press
Release Date : 2021

Democracy And Constitutions written by Allan C. Hutchinson and has been published by University of Toronto Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2021 with Constitutional law categories.

Bold and unconventional, this book advocates for an institutional turn-about in the relationship between democracy and constitutionalism.

Against The New Constitutionalism

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Author : Tamas Gyorfi
language : en
Publisher: Edward Elgar Publishing
Release Date : 2016-09-30

Against The New Constitutionalism written by Tamas Gyorfi and has been published by Edward Elgar Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-09-30 with Law categories.

Ever since the Second World War, a new constitutional model has emerged worldwide that gives a pivotal role to judges. Against the New Constitutionalism challenges this reigning paradigm and develops a distinctively liberal position against strong constitutional review that puts the emphasis on epistemic considerations. The author considers whether the minimalist judicial review of Nordic countries is more in line with the best justification of the institution than the Commonwealth model that occupies a central place in contemporary constitutional scholarship.

Weak Courts Strong Rights

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Author : Mark Tushnet
language : en
Publisher: Princeton University Press
Release Date : 2009-07-20

Weak Courts Strong Rights written by Mark Tushnet and has been published by Princeton University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2009-07-20 with Political Science categories.

Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.

Democratizing Constitutional Law

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Author : Thomas Bustamante
language : en
Publisher: Springer
Release Date : 2016-04-19

Democratizing Constitutional Law written by Thomas Bustamante and has been published by Springer this book supported file pdf, txt, epub, kindle and other format this book has been release on 2016-04-19 with Law categories.

This volume critically discusses the relationship between democracy and constitutionalism. It does so with a view to respond to objections raised by legal and political philosophers who are sceptical of judicial review based on the assumption that judicial review is an undemocratic institution. The book builds on earlier literature on the moral justification of the authority of constitutional courts, and on the current attempts to develop a system on “weak judicial review”. Although different in their approach, the chapters all focus on devising institutions, procedures and, in a more abstract way, normative conceptions to democratize constitutional law. These democratizing strategies may vary from a radical objection to the institution of judicial review, to a more modest proposal to justify the authority of constitutional courts in their “deliberative performance” or to create constitutional juries that may be more aware of a community’s constitutional morality than constitutional courts are. The book connects abstract theoretical discussions about the moral justification of constitutionalism with concrete problems, such as the relation between constitutional adjudication and deliberative democracy, the legitimacy of judicial review in international institutions, the need to create new institutions to democratize constitutionalism, the connections between philosophical conceptions and constitutional practices, the judicial review of constitutional amendments, and the criticism on strong judicial review.

Weak Constitutionalism Reflections On Comitology And Transnational Governance In The European Union

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Author : Peter L. Lindseth
language : en
Publisher:
Release Date : 2014

Weak Constitutionalism Reflections On Comitology And Transnational Governance In The European Union written by Peter L. Lindseth and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014 with categories.

At the heart of the European system is a process of deliberative interaction and negotiation over the content of regulatory norms for the single market. The legitimacy of the transnational system may fairly be called lsquo;weak' because it still primarily depends on national institutions for its democratic linkage to the peoples of Europe. The system may also be understood as lsquo;constitutional', however, precisely because it seeks to constrain, and in some sense to overcome, the propensity of nation states to parochialism and self-interest and therefore represents an autonomous regulatory interest of its own. What I am calling lsquo;weak' (or lsquo;transnational') constitutionalism is perhaps best manifest in the EU committee system, which is explored in detail in the two collective volumes that are the focus of this review essay.

Unstable Constitutionalism

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Author : Mark Tushnet
language : en
Publisher: Cambridge University Press
Release Date : 2015-09-17

Unstable Constitutionalism written by Mark Tushnet and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2015-09-17 with Law categories.

This book examines constitutional law and practice in five South Asian countries: India, Pakistan, Sri Lanka, Nepal, and Bangladesh.