詹姆斯·麦迪逊总统对《红利法案》的否决

詹姆斯·麦迪逊总统对1817年<红利法案>的否决与美国早期宪政和交通革命关系重大.麦迪逊总统之所以否决<红利法案>,乃是因为他认为由联邦政府主持全国交通建设超出了美国宪法授予联邦政府的权力范围,并且他反对国会中众多议员对宪法的"宽泛解释".该否决阻碍了联邦政府在美国早期交通建设中发挥积极的主导作用,最终由各州和地方政府以及私人企业在19世纪上半期蓬勃兴起的交通革命中担当了主要角色.     

詹姆斯&#183;麦迪逊总统对《红利法案》的否决

詹姆斯&#183;麦迪逊总统对1817年《红利法案》的否决与美国早期宪政和交通革命关系重大。麦迪逊总统之所以否决《红利法案》,乃是因为他认为由联邦政府主持全国交通建设超出了美国宪法授予联邦政府的权力范围,并且他反对国会中众多议员对宪法的“宽泛解释”。该否决阻碍了联邦政府在美国早期交通建设中发挥积极的主导作用,最终由各州和地方政府以及私人企业在19世纪上半期蓬勃兴起的交通革命中担当了主要角色。     

美国早期政治中“98年原则”的形成——以弗吉尼亚州为个案

“98年原则”是美国早期州控制国家的一种方式,即制定宪法契约的各州有权废止违宪的联邦法令,通过这种对抗性的行动,州可以阻止国家持续的权力扩张,维护自身的保留权力。弗吉尼亚州的政治精英从一开始就警惕国家权力的增长。在弗吉尼亚州宪法批准大会上,宪法的反对者不断施加压力,要求限制国家权力,明确宪法的解释规则,以维护弗吉尼亚的安全。宪法支持者的保证为“98年原则”奠定了宪法论辩的基础。联邦政府成立之后,国家权力的不断增长迫使弗吉尼亚共和党人思考怎样进行反抗的问题,而通过州政府抵制联邦政府是重要选项。在更严重的宪法危机面前,他们最终提出了“98年原则”,宣布州有权判定联邦法令违宪。“98年原则”深刻地反映了美国早期以州为核心的宪法秩序,意在维护州层面的公民自治,严格限定中央国家的行动范围。     

美国国父与中国

正美国历史上的前四任总统乔治·华盛顿、约翰·亚当斯、托马斯·杰斐逊和詹姆士·麦迪逊都是美国独立和建国过程中的领导人,各自以其独特的贡献而位入国父之列。华盛顿在独立战争时期担任大陆军总司令,联邦政府成立后担任美国的首任总统。亚当斯的共和政府理论深刻影响了独立后各州宪法的制定,他还参与了《独立宣言》的起草,担任了华盛顿政府的副总统,并继华盛顿之后担任第二任总统。杰斐逊是《独立宣言》的主要起草人,美国的第三     

美国历史上的州权

“州权”(States Rights),按字面解释就是州的权利。这种权利的法律根据就是于1791年12月15日生效的合众国宪法修正案第十条:“本宪法所未授予合众国或未禁止各州行使之权力,均由各州或由人民保留之”。这简单的一句话,反映了宪法制订前后的极其复杂的政治斗争。 美国历史上的州权,是一种特殊历史条件下的产物。它在美利坚合众国诞生和发展过程     

美国建国初期商业公司授予权的归属与政府权力的划分

美国建国初期,绝大多数商业公司都由各州议会颁发特许状建立。不过,每当有人提议由国会授权建立商业公司时,都会引发争论和反对。反对者提出,国会没有被赋予建立商业公司的权力。建国精英对商业公司授予权归属的立场,在一定程度上反映了他们对于中央政府与各州政府权力范畴上的态度。特别是制宪会议之后,虽然联邦权威得到了加强,但宪法并没有在联邦与各州的权力上划定明确界限,联邦与各州在权力上不断博弈。在博弈中,各自权力的范畴,在于政治精英在面对具体问题时对公共利益的理解,以及对各种利益关系的衡量。     

宪法本体论的解读

宪法是国家的根本大法,这更多的是从一国法律体系和法律效力方面来明确的。全面认识宪法,还应包括更多的内容:宪法是法的组成部分,是人民授权政府的一份授权委托书,因而,宪法既是控制公共权力的控权法,同时又是保护人民权利的保权法;宪法是国家活动的总章程,因而,宪法明确了国家的组织原则和管理方式;宪法调整的是国家的重大社会关系,因而宪法在内容上有别于其他普通法律;宪法具有最高的法律效力,因而制宪和修宪的程序比普通法律严格。     

南京国民政府公务员考绩法实施考论

公务员考核的法治化管理是建立法治政府的题中之意,南京国民政府设立了考试院管理公务员的考试和铨叙事项,考试院铨叙部的公务员铨叙职能虽然有大量宪法性文件规定,但是国民政府通过的《公务员考绩法》和相关公务员考绩条例并未明确并保障该项权力的运行,铨叙权的执行性法律规范仍然将对下级公务员的考核铨叙权力授予了公务员所在机关的长官,...     

论林肯反奴隶制思想的重要思想源头

美国第16任总统亚伯拉罕·林肯是一位坚强的反奴隶制战士,其反奴隶制思想的主要思想源头如下(一)杰斐逊的民主主义思想.(二)自然神论.(三)人道主义.(四)国家主义观念.由于具有这种思想基础,林肯始终遵奉杰斐逊民主的基本原则,以捍卫宪法和维护国家统一为己任,痛恨种族奴役,并能够顺应进步潮流,同南方奴隶制度进行不懈的斗争.     

《印第安人博彩业管制法》及其对印第安部落地位的影响

1988年通过的《印第安人博彩业管制法》是美国印第安人事务中的一个重要法案,该法是为解决因部落赌博而带来的部落与州之间的纠纷而颁布.它要求部落与州就赌博事宜达成契约,然而订立契约却改变了部落的地位,因为部落早在美国政府和州形成之前就已存在于北美大陆.根据联邦宪法,部落与美国政府维持着特殊的联邦关系,其政治地位要高于州,一直以来部落主要是与联邦政府发生关系.但在该法通过后,部落却必须要与一直被视为印第安人威胁的州进行互动.因此,该法普遍被认为背离了部落自决原则,将州与联邦政府间的权力平衡转向了州,从而削弱了联邦政府和部落的权力.     

The Early Supreme Court and the Challenges of Riding Circuit

The ratification of the United States Constitution ushered in a new system of government. No longer did the thirteen states merely hang together by the threads of a confederation; they now bonded to each other as one nation. Organized chiefly by the first three articles of the Constitution, a federal government began to take shape. The Framers expressly laid out the functions and duties of the first two branches in the first two articles—the legislative and executive. However, Article III, which organized the judiciary, remained short and ambiguous. The Founders charged the First Congress with the task of organizing the federal judiciary. Even after Congress created the judiciary, however, questions still plagued the system. This essay argues that the actions taken by the Justices of the early Supreme Court to ease the burden of circuit riding expanded and further defined the judiciary's role as a branch of government.     

Unfinished Business: Confirming Australia's Constitution as an Act of Political Settlement

This paper sympathises with both conservatives who oppose continual tampering with the Constitution and progressive reformers wishing to improve its democratic character. It suggests a constitutional reconciliation between the two is feasible if both take more account of the position advanced by federal constitutionalists. Such a reconciliation would leave the mainframe of the Constitution intact and establish it more securely as an authoritative framework for political association. Doing so would also resolve much of the normative confusion surrounding the polity, help establish a more coherent philosophy of government in Australia, and subsume the translation to a republic.     

THE CAPITAL AND THE CAMPUS—EACH IN ITS PROPER PLACE

A tension exists between government and the academy. State and federal agencies demand that colleges and universities demonstrate their accountability for public funds and to public policy initiatives. The campuses hold that such requirements have come to represent an inappropriate intrusion into institutional affairs and that they present a serious challenge to academic freedom. While a reduction and redirection of regulation may serve the colleges veil, a review of history indicates that the important developments in higher education have occurred during periods of government involvement. Perhaps, then, the real fear that should be felt on campus is the- recent trend of government disinterest in higher education.     

A Challenge to Presidential Wars: Smith v. Obama

From World War II to the present time, presidents have exceeded constitutional and statutory authority in exercising the war power. In doing so, they violate the rule of law, the principle of self-government, and the system of checks and balances. The U.S. Constitution expressly rejected the British model that placed with the Executive exclusive authority over external affairs, including taking the country from a state of peace to one of war. The Framers assigned that power solely to Congress. A lawsuit filed in 2016, Smith v. Obama, asked a federal district court to decide whether President Obama may engage in war without receiving express authority from Congress.     

The Judicial Bookshelf

A persistent reality of constitutional government in the United States from practically the beginning of the Republic has been the close link between the Constitution itself and the Supreme Court. Oddly, this link derives more from the Constitution's impact on the American political system than from what the Constitution itself actually says or contains. True, Article III included cases “arising under this Constitution” in describing the proper reach of the federal judicial power, and Article VI specified that “[t]his Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land … ” ¹ But the document not only provided scant means for enforcing that supremacy, but also failed even to specify how this “supreme Law” should be interpreted. It soon became clear, however that the task of interpretation would fall upon the Supreme Court, as illustrated by Chisholm v. Georgia. ² In the face of assurances made by Alexander Hamilton, James Madison, John Marshall, and others during the ratification debates in 1787–1788 that a state could not, without its consent, be made a defendant in the federal courts by a citizen of another state, ³ the Justices in 1793 construed the language in Article III conferring the federal judicial power in suits “Between a State and Citizens of another State” to encompass a suit brought by a South Carolinian against the State of Georgia. The uproar that ensued prompted swift ratification of the Eleventh Amendment, which reversed the Court's first excursion into the realm of constitutional interpretation. Despite this rebuke, it was only a short time before Chief Justice Marshall insisted that the judicial power encompassed the authority “to say what the law is.” ⁴ Thus, from the assumed role of expounding of the Constitution evolved the companion duty of guarding it as well.     

Recognition of native rights in Northern Quebec: Settlement of comprehensive claims,constitutional protection and economic development

In order to allow for hydro development in Northern Quebec, it was necessary for the federal and provincial governments to negotiate conditions of settlement with the tree and Inuit people. These negotiations resulted in the James Bay and Northern Quebec Agreement in 1975.

A process to define aboriginal rights was established when the Canadian Constitution was repatriated in 1981–1982. In 1983, the Constitution was amended to recognize, among other things, rights or free ‐doms acquired by way of land claims agreements, as well as existing aboriginal and treaty rights. However, after a series of constitutional meetings, participants did not agree on an amendment to entrench the right to self‐government.

In the context of future development and actual practices, the exercise of rights is also extremely crucial; and, indeed, it is only through practice that those rights can be measured.     

One Hundred and Twenty-Five Years after Slaughterhouse: Where's the Beef?

You never know. Historical events intended for one purpose sometimes result in the unintended, and American history is far from immune to this tendency. Thus the Civil War—first considered by Lincoln as nothing more than an attempt to prevent Southern secession—ultimately went far beyond an effort to preserve the Union, far beyond ending African-American slavery, far beyond even ensuring continued western expansion. By 1866, the war had wrought changes in the relationship between the federal government and the states, the federal government and its people, as well as the states and their citizenry. Although they may well have been unintended and their extent unclear, these transformations doomed continuance of the Union as it had been—producing instead a new connection between the American people and their legal order that is still evolving.¹ One manifestation of such change was the Fourteenth Amendment adopted by Congress in 1866. Ratified by the states as part of the Constitution in 1868, five years later the Supreme Court first considered its meaning and scope; and thereby hangs a story rich in irony.     

金朝后期行省官制考

金朝后期设置的行省,由其最高长官行省事开府置官。行省机构职官有行政机构左右司职官、军事职官、监察御史等。行省事通常需要具有中央尚书省宰执身份,其职掌包括军事事务和地方行政事务两方面,体现出行省官制极强的军政合一性。其中行省行政机构的设置,为行省最终转化为地方统治机构奠定了基础。     

The Judicial Bookshelf

Millions were reminded on January 20, 2009, that the inauguration of an American President is as remarkable as it is routine. In this distinctly republican rite, the chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, “[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’” ¹ This display of constitutional fealty was remarkable because the variety of political systems, experiences, and cultures across today's globe graphically illustrates that the seamless and peaceful transfer of authority from one political party or individual to another, as was witnessed at President Barack Obama's inauguration and at President George W. Bush's inauguration in 2001, is not always a foregone occurrence everywhere. January's event was routine in that, from the outset of government under the Constitution and with the notable and tragic exception of 1860, the defeated party or individual has accepted, if not welcomed, the verdict rendered by the electoral process. That was the outcome even in 1800, when the notion of a violence‐free shift of control in a country founded on the principle of government by the “consent of the governed” ² was first put to the test at the presidential level. The assumption of authority by Thomas Jefferson and the Democratic‐Republicans from John Adams and the Federalists marked the world's first peaceful transfer of power from the vanquished to the victors as the result of an election. ³ Given the stark national partisan differences that had crystallized in the short time since ratification of the Constitution and the fact that finalization of the election required extraordinary intervention by the House of Representatives to break an Electoral College tie, this outcome was a greater achievement than is sometimes acknowledged. “Partisanship prevailed to the bitter end and showed no signs of abating,” according to one historian who has recently revisited this critical and precedent‐setting election. “Over the campaign's course, George Washington's vision of elite consensus leadership had died, and a popular two‐party republic … was born.” ⁴     

Revitalizing Federalism: A Brownsonian Prescription for Preserving National Unity Amidst Growing Diversity

Abstract

Historically, the United States has achieved a relatively high degree of political stability. The reason: the Federal Constitution provides a complex architecture that checks and divides political power and compels compromise. In A Constitution in Full: Recovering the Unwritten Foundation of American Liberty, Richard Reinsch and Peter Augustine Lawler recommend the work of Orestes Augustus Brownson, a Civil War era theorist, to properly interpret the genius of this unique American constitutional order. In The American Republic (1865), Brownson emphasized that America’s written constitution is rooted in its unwritten constitution; the habits, customs, and sentiments of the people. The Founders’ federal division of authority between the nation’s general government and the particular governments of the states simultaneously recognized Americans’ national unity and genuine diversity. Today, that diversity—racial, religious, ethnic—is even more granular. In accommodating that diversity, a revitalized federalism would return greater power to the people of the states over domestic policies. This would not only regenerate democratic decision-making, but would also help to reduce the political polarization by allowing policy outcomes suitable to diverse communities.