Interpreting the Bill of Rights and the Nature of Federalism: Barron v. City of Baltimore

In 1833, a mere forty-five years after the Constitution of the United States took effect, the young republic was striving to establish the form its constitutional government would take. For while the Constitution and its first ten amendments had set forth many principles regarding the rights of individual citizens with respect to the actions of their government, the precise nature of these relations would be determined in large part by U.S. Supreme Court Chief Justice John Marshall.     

The Judicial Bookshelf

Americans were reminded last January 20, as they are every four years, of the central moment at the Inauguration: the swearing in of the president. In this republican rite, the new or continuing 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 Justices of the Supreme Court, other federal judges, legislators and officials, as well as state officeholders, likewise govern only upon making a similar pledge. "Senators and Representatives … , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." ² And for added emphasis, protection, and insurance, the Constitution crowns itself, national statutes, and treaties as "the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." ³ Parallel drama unfolds in other venues too. In the half century since all nominees to the Supreme Court have routinely appeared before the Senate Judiciary Committee, it would be difficult to find an example of a would-be Justice who, through one combination of words or another, did not promise senators that she or he would faithfully interpret and apply the Constitution.     

National League of Cities and the Ephemeral Nature of Significant Supreme Court Cases

For many years, I taught third‐year law students at the Dickinson School of Law (Penn State's law school now, a private institution then) a seminar entitled “The Constitution.” For a semester we would seek to get to know the document through a careful reading of it, along with some of the works that those who wrote the Constitution would have read and some that they wrote, various essays by legal scholars and political scientists, and various Supreme Court cases. The goal was to get these budding young attorneys to try to determine what, if any, relationship there might be between what the Constitution says and what we now say it says.     

孙中山五权宪法思想的演进

辛亥革命以前,孙中山本人虽然基本形成了五权宪法的思想,但是较之于三民主义而言,他的五权宪法思想其实并未得到推广和宣传,当然也没有成为革命的思想基础。辛亥革命期间,南方独立各省制订的约法以及南京临时政府期间制订的《中华民国临时约法》,既非孙中山的本意,当然也不可能体现他的宪法思想,而是与其"五权宪法"相背离的。孙中山在维护"临时约法"、并以之作为反对北洋军阀统治的武器的同时,也对于这个武器进行了批判;在上述"扬弃"的过程中,其五权宪法思想得到了继续发展。孙中山晚年,通过多次演讲,五权宪法思想近乎成熟;1922年6月,叶夏声奉命起草的《五权宪法草案》,可以说是反映孙中山五权宪法思想的一个弥足珍贵的法律文本。孙中山将其毕生奋斗的五权宪法思想及其实现任务,作为政治遗产,留给了后世。与三民主义一样,五权宪法思想的演进轨迹,也体现了非常鲜明的孙中山个人的特点。     

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.     

Congress,Health Care Reform,and Reconciliation

This article explores the role of reconciliation in the passage of health care reform in the 111th Congress. Although counterintuitive, the analysis suggests that the loss of a filibuster-proof super-majority with the election of Senator Scott Brown (R-MA) aided Democrats in clearing the overhaul package by facilitating the use of reconciliation. Reconciliation provided the critical procedural mechanism enabling health care reform to be enacted into law. Despite reconciliation's importance, substantively the reconciliation “fixes” were relatively modest amendments. Moreover, notwithstanding the use of reconciliation, Congress passed the health care legislation with largely conventional means—separate health care reform measures cleared the House and Senate in 2009, in 2010 the House approved the Senate bill, and then both chambers quickly passed the reconciliation addendum. This research draws on discussions I had with over a dozen key actors after health care reform passed.     

Building communities in a post-conflict society: churches and peace-building initiatives in northern ireland since 1994

In 1994 the IRA and Loyalist paramilitary groups declared ceasefires, leading to a more relaxed attitude and cross-community contacts in Northern Ireland. The result was the establishment of a new type of church-based reconciliation group, the Church Fora, intended to improve community relations and promote peace and reconciliation within local areas. This article focuses on the ways in which Church Fora have expanded the methods of such work since 1994. It will assess their effectiveness in promoting peace and reconciliation and developing community relations in Northern Ireland by placing them within the broader framework of church-based reconciliation work. Finally, by assessing how successful Church Fora have been in achieving their aims and objectives, I examine the lessons that could be learned for church-based reconciliation work being carried out within Northern Ireland.     

The Principle and Practice of 'Reconciliation' in German Foreign Policy: Relations with France, Israel, Poland and the Czech Republic

Germany has sought 'reconciliation' with former foes as an ideal in foreign policy since 1949. Reconciliation remains a priority of new the SPD-Green coalition, as for all previous German governments since the Second World War, for both moral and pragmatic motives. In four bilateral cases of reconciliation in German foreign policy–with Israel, France, Poland, and the Czech Republic–the mix of pragmatism and morality differs depending on history, institutions, leadership, and the international context. Reconciliation with France and Poland is more institutionalized, more open, more embedded in the European Union, and more pragmatic than in the other two cases. In relationswith Israel and the Czech Republic, history and moral claims are more prominent. Institutions are important in all four cases, but they are not as dominant in the latter two cases. Political leadership is central in all four cases, navigating the relationships through periods of domestic opposition to bilateral partnership in processes of reconciliation that strive for an unachievable idea.     

日本资本主义制度确立时期的财政政策

1877年的西南战争使明治政府真正实现了中央集权。从1877年西南战争结束至1889年《大日本帝国宪法》的颁布,为日本近代资本主义制度确立时期。此间明治政府建立并完善内阁制,开设国会,制定并颁布宪法,建立近代天皇制;与其相适应,财政上,在致力于建立、完善近代财政金融制度的同时,开始由积极财政政策向财政紧缩政策转变。本文重点探讨此间明治政府财政政策转变的原因、内容及影响。     

Political reconciliation in Timor Leste,Solomon Islands and Bougainville: the dark side of hybridity

In recent years, the study and practice of political reconciliation has experienced a turn to hybridity. This turn has been defined by the increased rate at which liberal international and local peacebuilding practices, and their underlying ideas, have become merged, integrated or co-located in time and space. While hybrid approaches to reconciliation have been praised as an effective means of engaging local populations in peacebuilding operations, little attention has been paid to examining whether or not they also bring unintended negative consequences. Drawing on the cases of Timor Leste, Solomon Islands and Bougainville, this article examines the potentially dark side of hybridity. It demonstrates that, in each of these cases, hybrid approaches to political reconciliation have brought both positive and negative consequences. On the positive side of the equation, hybridity has seen imported international approaches to reconciliation adapted to meet local demands and ensure resonance with local populations. On the negative side, however, the misappropriation and instrumentalisation of local practices within hybrid approaches has served to damage their legitimacy and to jeopardise their contributions to reconciliation. The article thus concludes that the existence and extent of this dark side necessitates a re-evaluation of how hybrid approaches to political reconciliation are planned and implemented.     

The dossettiani and the concept of the secular state in the constitutional debates: 1946–7

It is now generally accepted that the members of the Constituent Assembly who were charged with drafting the Constitution concentrated their efforts on formulating the ideals to be expressed in it at the expense of the institutional arrangements of the new Republic. This has generally been viewed as resulting from a combination of two factors: their weak grasp of the liberal principles underpinning liberal parliamentary democracy, and a concomitant error of judgement in assuming that sufficient stress on the ideals of the Constitution would guarantee the basis of a healthy democracy. This article sets out to examine the input of the most influential Catholic group, the dossettiani, and argues, against the error of judgement thesis, that in fact their rejection of the concept of the secular state was a more fundamental denial of important principles of a pluralist democracy than has usually been supposed. The article also places their contribution within the context of the Church's aim to create a ‘Christian civilization’, and further suggests that the model of Catholic Action which inspired its collateral vision of Catholic forces was corrosive of a pluralist vision of correct institutional arrangements. The article ends by suggesting that these factors may have weighed more heavily on subsequent distortions of Italian democracy than has so far been supposed.     

On re‐examining western attitudes to Russia

There are several strands in western antipathy to Russia which predate the Soviet era by more than a century. Public opinion was always divided on how to respond to the Russia problem; however, neither western nor Soviet leaders sought out war. There is fresh and credible evidence that Brezhnev was a ‘dove’, who was not interested in world revolution and genuinely wanted reconciliation with the United States. The attainment of democracy requires not only an enlightened leader but an intelligent opposition. However, the crucial factor in democratic transition is the avoidance of economic collapse. Nevertheless, the consensus in both Russia and the West in the 1990s was that a laissez‐faire policy was the only viable strategy. This article suggests another strategy which might have avoided or mitigated economic collapse. The consensus in both Russia and the West in the 1990s was that nothing should be done to impede the breakup of the USSR. The example of President Kennedy in the aftermath of the 1962 Cuban Missile Crisis is an example of magnanimity and a model of constructive reconciliation. In the present crisis over Ukraine there may be no alternative to confrontation—but confrontation in itself is a totally inadequate response. Western attitudes must not become an obstacle to reconciliation. Western public opinion can play an important part in forcing the clarification of such attitudes.     

Freedom,Religion and the Making of the Modern State in Japan, 1868–89

This paper rethinks the article of religious freedom of the Meiji Constitution of 1889 and calls into question the liberalist paradigm employed to understand the Constitution and modern Japanese history. In this liberalist framework, the Constitution manifests the peculiar and authoritarian nature of the pre-war Japanese state. In particular, the 28^th article, which provides for the conditional freedom of religious belief, is seen as no more than a cover for social control by the state. This paper examines the histories of the ideas of religion and freedom, and the religious freedom article, and argues that the most appropriate task is not to measure how much religious freedom the Meiji Constitution failed to guarantee against a de-historicised liberalism, but rather to consider the function of the very inclusion of religious freedom in the Constitution. I argue that the inclusion of religious freedom as a generic type of liberty in the Meiji Constitution was instrumental in the creation of the private modern individual as a subject-citizen. It is through this private individual citizen that the modern state as a public, secular authority was created.     

Sharing the colonial burden: Treaty‐making and reconciliation in Hul’qumi’num territory

This article explores different understandings of reconciliation within the context of modern treaty making in British Columbia, focusing on the role of the BC treaty process in resolving the longstanding dispute between Aboriginal Peoples and the Crown over rights to land. Although the treaty process was created to reconcile competing interests in the land, Crown and Aboriginal negotiators often have contradictory understandings of how this reconciliation is to take place. Drawing on a case study of the Hul’qumi’num Peoples, a group of Coast Salish First Nations, I examine how different understandings and approaches to reconciliation impede progress at the treaty table. I conclude that progress towards treaty and reconciliation in this case will require coming to terms with the Hul’qumi’num territory's colonial history and geography, something that the current treaty process actively avoids, plus the crafting of a treaty agreement that allows for a more equal sharing of the burden that colonialism has created in this place. More particularly, meaningful reconciliation will require a fuller recognition of Aboriginal title and rights across the breadth of the territory and a commitment to meaningful compensation of Hul’qumi’num Peoples for the wrongful taking of their lands.     

1982年宪法的制定过程及其历史经验

1982年宪法既总结了我国30多年来社会主义革命和建设的经验,又符合我国当时的实际情况,同时也照顾到了我国将来的发展,从而保证了宪法具有长期性和稳定性。1982年宪法颁布后,虽然随着实践的发展,进行过四次局部修改(第一次是1988年七届全国人大一次会议,第二次是1993年八届全国人大一次会议,第三次是1999年九届全国人大二次会议,第四次是2004年十届全国人大二次会议),但20多年的实践证明,1982年宪法是一部具有中国特色的、能够适应新的历史时期社会主义现代化建设需要的宪法。     

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.     

Truth and reconciliation? The experience of Truth Commissions1

Do truth commissions achieve truth? Do they achieve reconciliation? This article will consider these two questions in turn. I argue that truth commissions have failed to discern and report accurate and complete records of past atrocities, but they are socially and politically purposive. To reach this conclusion requires examining some theoretical concerns about the nature of truth and consideration of the accuracy and completeness of commissions’ reports. I argue that truth commissions do not achieve reconciliation, but they can catalyse it. I develop this argument through examining meanings of reconciliation, its (contested) relationship with truth and issues that complicate and advance its achievement. In this article I differentiate between truth as a product—a commission's report—and truth seeking as a process. I examine the contribution of both product and process to the achievement of truth and reconciliation.     

An ineluctable minimum of natural law: François Gény, Oliver Wendell Holmes, and the limits of legal skepticism

During the first few decades of the twentieth century, legal theory on both sides of the Atlantic was characterized by a tremendous amount of skepticism toward the private law concepts of property and contract. In the United States and France, Oliver Wendell Holmes and François Gény led the charge with withering critiques of the abuse of deduction, exposing their forebears’ supposedly gapless system of private law rules for what it was, a house of cards built on the ideological foundations of laissez faire capitalism. The goal was to make the United States Constitution and the French civil code more responsive to the realities of industrialization. Unlike the other participants in this transatlantic critique, François Gény simultaneously insisted on the immutability of justice and social utility. His “ineluctable minimum of natural law” would guide judges and jurists toward the proper social ends, replacing deduction with teleology. The problem was that nearly all of Gény's contemporaries were perplexed by his conception of natural law, which lacked the substance of the natural rights tradition of the eighteenth and nineteenth centuries and the historicist impulse of the early twentieth. No one was more perplexed than Oliver Wendell Holmes, whose more thoroughgoing skepticism led him to see judicial restraint as the only solution to the abuse of deduction. The ultimate framework for this debate was World War I, in which both Holmes and Gény thought they had found vindication for their views. Events on the battlefield reaffirmed Gény's commitment to justice just as they reignited Holmes’ existential embrace of the unknown. In a sense, the limits of their skepticism would be forged in the trenches of the Great War.     

Home and away: constructing family and childhood in the context of working parenthood

Little is known about children's views and experiences of their parents’ work?life reconciliation and how these are negotiated in everyday family practices. This article examines families' experiences of work?life reconciliation from both children's and parents' perspectives, drawing on a qualitative longitudinal study with 14 families in Scotland. Such experiences have implications for the spatial and temporal construction of family and childhood in the UK, where working parenthood is increasingly the norm.     

The Dichotomous Legacy of the Catholic Church’s Opposition to the Philippine Revolution of 1896

ABSTRACT

This article examines the repositioning of the Catholic Church in the aftermath of the Philippine Revolution of 1896–98, during the transfer of Spanish to American colonial rule. It reviews the consultations between the outgoing Spanish bishops and the Vatican’s Apostolic Delegate, Placido Chapelle, in January 1900, and the subsequent religious settlement promulgated in the Vatican’s Apostolic Constitution for the Philippine Church, Quae mari Sinico, in 1902. The Delegate’s identification with the Spanish bishops and their opposition to Filipino nationalist aspirations and the Filipino secular clergy confirmed the anti-Filipino position of the Church in the American colonial period. Both the Filipino bishops and the American bishops opposed independence and distrusted the nationalist leaders as anti-clerical Masons. This is followed by a discussion of the claimed reconciliation of Church and Filipino political aspirations in the post-Vatican II period in the 1960s, which culminated in the Church’s role in bringing down President Ferdinand Marcos in 1986. Committed to a theology of social justice, the bishops now aligned the Church with progressive democratic nationalists. In its successful opposition to the Marcos dictatorship in the name of “People’s Power,” the hierarchy claimed that through the “Miracle of EDSA” the Church had identified with and indeed represented the political will of the Filipino people.