26,201 research outputs found

    Two internal critiques of political constitutionalism

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    The antagonism between legal and political constitutionalism has almost monopolized the discussion on constitutional theory during the last years. For this reason, political constitutionalism has been assessed mainly as an alternative to legal constitutionalism. Moving beyond this perspective, this article intends to focus exclusively on political constitutionalism and its internal tensions. After having outlined the main tenets of this theory, two internal critiques are put forward, both concerning the understanding of the political aspect of constitutionalism: first, political constitutionalists propose a reductive account of the principle of political equality; second, their exclusive focus on ordinary politics as the centre of constitutional life is misleading and precludes a correct evaluation of constitutional politics

    When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions

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    Abstract Many opinions are divided on what religious freedom should protect and the area is unexploredin preschool. Is it the parents, the child or preschool teacher right? The aim of the studywas to investigate Maria klasson Sundin´s concept and theoretical models of religious freedomfor children through three Swedish preschool settings and also how three teachers interpretsand expresses children's freedom of religion. Through a qualitative interview study theaim was to investigate how the concepts of religion, autonomy and freedom is interpreted andexpressed by the teachers so a picture through this three concepts can categorise the teachersin a model; freedom of thought, tradition and life interpretation model so a broader picturecan be made to understand how the children's freedom of religion is expressed in the preschoolsetting and how the teachers work. The Result showed through the analysis that themodels fail to categorise the teachers in any theoretical model but on the other hand the understandingof preschool teacher’s expression and interpretation of the concept of religion,autonomy and freedom showed both diversity and lack of knowledge on the subject mattersreligious freedom which fall within the child rights issues. Furthermore the analysis showsthat children in preschool lack religious freedom, it can be interpreted rather in terms of afreedom of parents and preschool teachers. Further research is needed in the area of children'srights and religious freedom for preschool children and their teachers in (e.g.) investigate differenceof public municipal and private preschools, religious, and non-religious

    Public Choice: an Overview

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    Public Choice begins with the observation that in politics, as in economics, individuals and institutions compete for scarce resources and that, therefore, the same methods of analyses used by economists to explain the behaviour of consumers and producers might also serve well to explain the behaviour of governments and other (allegedly) “public-spirited” organisations . As Tullock (1988) succinctly put it, Public Choice is "the invasion of politics by economics". Public Choice derives its rationale from the fact that, in many areas, 'political' and 'economic' considerations interact so that a proper understanding of issues in one field requires a complementary understanding of issues in the other. Although the incursion of the analytical methods of economics into political science - which is the hall-mark of Public Choice - began in the 1950s, it was not until at least three decades later that the trickle became a flood. This chapter provides an overview of this field

    Unwrapping the Box the Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations over Confronting the Confrontation Clause

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    Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court\u27s former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement. Previous to Crawford, under Ohio v. Roberts, decided in 1980, the Court did not apply the requirement to statements made outside the trial if they were considered reliable. They were considered reliable only if they fit a traditional “firmly rooted” hearsay exception or were otherwise deemed reliable on the facts. But Crawford overruled Roberts. Crawford held that reliability is too subjective and flexible a concept, and that the Confrontation Clause by its terms does not command merely that evidence be reliable, but that reliability be determined in a particular way--by live cross examination. Thus Crawford decreed that henceforth, oral or written statements made outside of the trial that are “testimonial” cannot be admitted into evidence against the criminal defendant unless defendant has an opportunity to cross examine the maker at the trial or (if the maker is unavailable then) there was a sufficient earlier opportunity for cross examination. “Testimonial” generally speaking seemed to mean statements intended or understood to potentially supply evidence (perhaps only if the statement is acquired by agents of the state in a somewhat formal or solemn setting)

    The Justices of Strategy

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    Third-Party and Independent Presidential Candidates: The Need for a Runoff Mechanism

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    Consider what 2016 might have looked like if this better electoral system had been in place. Bloomberg then could have entered the race without risking being a spoiler. In a three-way race—Bloomberg, Clinton, and Trump—Bloomberg might have fizzled out, leaving a two-way race between Clinton and Trump. Since that is essentially how the election ended up anyway, the country would have been no worse off for having had a chance to consider Bloomberg as an alternative. But suppose, however, with Trump’s candidacy spinning out of control in a series of unacceptable comments (as it appeared to do in early August),11 the American electorate might have preferred a head-to-head matchup between Bloomberg and Clinton, rather than one between Trump and Clinton. Maybe Clinton would have beaten Bloomberg in that head-to-head matchup. That is fine; that is a democratic choice reflecting the preference of the electorate. But maybe Bloomberg would have beaten Clinton. We will never know, because the actual system in place was not designed to enable the American electorate to have that choice. In this respect, the existing system is deficient. It deprives the American electorate of an option it should have. The purpose of this Article is to offer a repair for this deficiency

    Gerrymandering Justiciability

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    As illustrated by its 2019 decision in Rucho v. Common Cause, the Supreme Court has gerrymandered its justiciability doctrines in a way that protects the political power of white voters. Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint. That gives the Court the discretionary power to uphold or strike down particular gerrymanders by deeming them racial or partisan in nature. Such discretion is problematic because, when the Supreme Court has exercised discretion in a racial context, it has historically done so to protect the interests of the white majority. And that appears to be what the Court is now doing again in allowing white Republicans to dilute the political power of minority Democrats. Part I of this Article describes the Supreme Court’s current justiciability rules for gerrymandering claims. Section I.A explains how the Court finds partisan gerrymandering claims to be nonjusticiable political questions. Section I.B explains how the Court finds racial gerrymandering claims to be justiciable. Part II inverts the Court’s justiciability rules, showing how they can be applied in a way that produces the opposite of the results that the Court found them to produce. Section II.A explains how partisan gerrymandering claims can be found justiciable. Section II.B explains how racial gerrymandering claims can be found nonjusticiable. Part III argues that the Court’s gerrymandered justiciability decisions create a sphere of unconstrained judicial discretion that the Court will end up exercising in a way that protects white electoral advantage from the threat of equalization through either partisan or racial gerrymandering. Section III.A argues that the Court’s decisions have the effect of diluting minority votes and reducing minority voting strength. Section III.B argues that such protection of white interests is consistent with the role that the Supreme Court has played throughout the history of race relations in the United States. The Article concludes that neither political nor judicial efforts are likely to secure electoral equality for either political or racial minorities, because the Supreme Court will not compel the mathematical proportionality that offers the only realistic hope of ever achieving the equality needed for genuine democratic self-governance

    Public Choice: an Overview

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    Public Choice begins with the observation that in politics, as in economics, individuals and institutions compete for scarce resources and that, therefore, the same methods of analyses used by economists to explain the behaviour of consumers and producers might also serve well to explain the behaviour of governments and other (allegedly) “public-spirited” organisations . As Tullock (1988) succinctly put it, Public Choice is "the invasion of politics by economics". Public Choice derives its rationale from the fact that, in many areas, 'political' and 'economic' considerations interact so that a proper understanding of issues in one field requires a complementary understanding of issues in the other. Although the incursion of the analytical methods of economics into political science - which is the hall-mark of Public Choice - began in the 1950s, it was not until at least three decades later that the trickle became a flood. This chapter provides an overview of this field.Public Choice, Political Business Cycle, Median Voter
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