Freedom of Religion and Belief in India and Australia: An Introductory Comparative Assessment of Two Federal Constitutional Democracies

This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, that protection is far from comprehensive. Instead, unlike its Indian counterpart, the Australian federal democracy depends upon a piecemeal collection of Constitutional, legislative, and common law provisions which, when taken together, seem to achieve plenary protection for free exercise. Still, while India protects free exercise within a comprehensive constitutional framework, and while Australia does so in a disjointed and fragmentary way, both arrive at the same place: a constitutionalism characterized by secularism/separation of church and state combined with a corresponding comprehensive protection for free exercise

Balancing Justice Needs and Private Property in Constitutional Takings Provisions: A Comparative Assessment of India, Australia, and the United States

This Article explores the relationship between justice needs and private property in the constitutional takings provisions of the Indian, Australian, and American constitutions. Building upon established scholarship, it develops a theoretical framework within which to consider the way in which a state balances the requirement to provide minimal levels of justice for its citizens through the re-distribution of goods and resources with the need to protect the private property of individuals. We summarize this framework in what we refer to as the “Justice Needs-Protection of Private Property Continuum.” Using the framework developed, the Article provides an outline of the takings provisions found in the Indian, Australian, and American constitutions. Part I examines Article 300A of the Constitution of India, which contains the scope of the power of compulsory acquisition exercised by the Indian state. Part II assesses Section 51(xxxi) of the Australian Constitution which, unlike its American and Indian counterparts, operates as both a grant of power to the federal government, as well as a limitation imposed upon that power, which may, it seems, operate so as to provide some minimal protection for individual private property interests. Part III considers the Takings Clause of the Fifth Amendment to the United States Constitution which, as interpreted by the Supreme Court, provides perhaps the most robust means among the three jurisdictions considered for protecting the individual private property interests as against state takings. The Conclusion offers comparative reflections on the nature of the takings provision found in each jurisdiction.Krithika Ashok, Paul T. Babie, & John V. Ort

Not Child’s Play: A Constitutional Game of Pass the Story in \u3ci\u3eDobbs\u3c/i\u3e, \u3ci\u3eShurtleff\u3c/i\u3e, and \u3ci\u3eKennedy\u3c/i\u3e

This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, what happens next cannot be predicted at the outset. This ongoing quest, though, comes with a cost: certainty. Adding to a story might be a good literary device to keep a listener or reader interested, but it is of little use in a system that at least pays lip service to stare decisis and the rule of law

No Amendment? No Problem: Judges, “Informal Amendment,” and the Evolution of Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and the United States

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” constitutions of the United States and India, and the “adaptive establishmentarian” constitutions of Canada and Australia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of a federal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence of formal amendment, judges use an image of the constitution to give and to change the meaning of a written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or for ill

No Amendment? No Problem: Judges, Informal Amendment, and the Evolution of Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and the United States

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” constitutions of the United States and India, and the “adaptive establishmentarian” constitutions of Canada and Australia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of a federal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence of formal amendment, judges use an image of the constitution to give and to change the meaning of a written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or for ill

Federalism Fails Water: A Tale of Two Nations, Two States, and Two Rivers

86 pagesIn this Article, we consider the deployment of public power over the water resource. Federalism, like property, fragments control by dividing and separating power. While fragmentation might work to some extent for relatively discrete aspects of public power, such as those with respect to going to war, entering treaties, issuing money, and raising and maintaining armed forces, when applied to water, questions immediately arise: which unit of government gets to decide about the allocation of private power—property. Which unit of government can deal with those challenges that transcend formal boundaries, such as the environment

Not Child’s Play: A Constitutional Game of Pass the Story in \u3ci\u3eDobbs\u3c/i\u3e, \u3ci\u3eShurtleff\u3c/i\u3e, and \u3ci\u3eKennedy\u3c/i\u3e

This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, what happens next cannot be predicted at the outset. This ongoing quest, though, comes with a cost: certainty. Adding to a story might be a good literary device to keep a listener or reader interested, but it is of little use in a system that at least pays lip service to stare decisis and the rule of law

Balancing Justice Needs and Private Property in Constitutional Takings Provisions: A Comparative Assessment of India, Australia, and the United States

This Article explores the relationship between justice needs and private property in the constitutional takings provisions of the Indian, Australian, and American constitutions. Building upon established scholarship, it develops a theoretical framework within which to consider the way in which a state balances the requirement to provide minimal levels of justice for its citizens through the re-distribution of goods and resources with the need to protect the private property of individuals. We summarize this framework in what we refer to as the “Justice Needs-Protection of Private Property Continuum.” Using the framework developed, the Article provides an outline of the takings provisions found in the Indian, Australian, and American constitutions. Part I examines Article 300A of the Constitution of India, which contains the scope of the power of compulsory acquisition exercised by the Indian state. Part II assesses Section 51(xxxi) of the Australian Constitution which, unlike its American and Indian counterparts, operates as both a grant of power to the federal government, as well as a limitation imposed upon that power, which may, it seems, operate so as to provide some minimal protection for individual private property interests. Part III considers the Takings Clause of the Fifth Amendment to the United States Constitution which, as interpreted by the Supreme Court, provides perhaps the most robust means among the three jurisdictions considered for protecting the individual private property interests as against state takings. The Conclusion offers comparative reflections on the nature of the takings provision found in each jurisdiction

No Amendment? No Problem: Judges, Informal Amendment, and the Evolution of Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and the United States

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” constitutions of the United States and India, and the “adaptive establishmentarian” constitutions of Canada and Australia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of a federal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence of formal amendment, judges use an image of the constitution to give and to change the meaning of a written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or for ill