This chapter studies the term ‘co-operative federalism’ and the part it plays in the working of Australia's constitutional arrangements. Co-operative federalism, as practised in Australia, is immanent in the functioning of the federation but has an extra-constitutional dimension. It is designed to serve objectives which go well beyond those achievable by the exercise of Commonwealth legislative power and the separate exercise by the States of their powers. It may well have a tendency to centralize power notwithstanding the intergovernmental agreements and supervisory arrangements involved in its implementation. Every topic which is treated, albeit by consensus, as one requiring co-operative action becomes potentially a topic of which it can be said that it is best dealt with at a national level.
Gary Jeffrey Jacobsohn
This chapter examines the concept of constitutional identity as it applies to the Indian Constitution. It first considers the problem of constitutional identity, with particular emphasis on the preservative function of the constitution. It then explains how the constitution acquires an identity that emerges dialogically and represents a combination of political aspirations and commitments reflective of a nation’s past. It also explores the static and dynamic perspectives on identity with regard to the transformational agenda of Indian constitutionalism, along with the underlying politics of constitutional identity and the judiciary’s articulation of the meaning of constitutional identity. The chapter concludes by reviewing two highly controversial cases that have important implications for India’s constitutional identity.
This chapter examines the constitutional politics of Congress, with particular emphasis on the ways constitutional values are shaped by congressional interpretations of the Constitution. It first considers the role of Congress in constitutional decision-making at all phases of the legislative process, including the enactment of legislation, oversight of government departments and agencies, confirmation of judges and justices, and countermanding of the Supreme Court through constitutional amendments. It then compares the constitutional interpretations of early Congresses with those of today’s Congress, focusing on impediments to Congress’s constitutional interpretation. It suggests that lawmakers no longer have incentives to take the Constitution seriously, and outlines the reasons this is so.
This chapter examines the constitutional politics of the executive branch in the United States. It first reviews some important concepts in the study of constitutional politics involving the presidency, including representation, formal and informal powers, unilateralism and extraordinary powers, and war, pointing out the significance of the president’s status as both a domestic and a global representative, and highlighting tensions between the “foreign” and “domestic” presidencies. It considers the changes in presidential power since the early republic and suggests that assessing whether these changes have been a boon or bane will require literatures in political science and legal studies to deepen their mutual engagement.
This chapter examines the constitutional politics of the judiciary, with particular emphasis on judicial structure, judicial personnel, and judicial power. It first considers the constitutional politics of judicial structure, with particular attention to changes in the size of the Supreme Court and the organization of the federal judiciary. It then examines the constitutional politics of judicial personnel, including presidential deliberations about Supreme Court nominations and senatorial assessments as part of the Supreme Court confirmation process. Finally, it analyzes the constitutional politics of judicial power—chiefly in the context of debates surrounding federal jurisdiction and the role and scope of judicial review. It concludes with some brief thoughts on the unique ways in which the politics of the judiciary are thoroughly and in manifold ways constitutionalized.
Ernest A. Young
This chapter focuses on constitutional interpretation and enforcement by extrajudicial institutions. It explores the critique of judicial supremacy by departmentalists such as Walter Murphy, empirical scholars skeptical of judicial efficacy such as Gerald Rosenberg, and popular constitutionalists such as Larry Kramer and Mark Tushnet. It also considers four distinct institutional forms of extrajudicial constitutionalism: protection of constitutional values through political processes and checks and balances, the role of social movements in shaping constitutional meaning, resolution of particular constitutional controversies in the political branches through processes of “constitutional construction,” and the role of “administrative constitutionalism.” Although the critique of judicial supremacy has had a salutary impact in broadening the horizons of constitutional law, the chapter emphasizes the courts’ ultimate settlement function in litigated constitutional controversies.
Democracy has oscillated between individualist, collectivist, and organicist notions since the revolutionary era. Similarly, throughout history, democratic movements have agonized over what the power of the people should mean and how it could be exercised democratically. Today, models prevail that transform the fictive will of the people by elective procedures into regimes of (limited) majority rule based on the representational transmission of power, some representative regimes are complemented by forms of direct popular participation. And, consequently, the various narratives of democracy mirror until today the theoretical and practical-institutional attempts to limit majority rule in order to lend some credibility to the idea and ideology that minorities may become majority and vice versa — an interplay that qualifies democracy as legitimate popular self-rule. This article discusses the varieties of constitutional democracy and the dangers posed by democracy.
Terence Daintith and Yee-Fui Ng
This chapter discusses the executive branch in Australia. It demonstrates the relationship between the explicit terms of the Australian Constitution and the way the Executive is actually organized. It also identifies the unwritten but constitutionally salient features of executive organization, and how they relate to broader constitutional values such as responsible government, effectiveness, and legality. The chapter highlights the various ways of controlling Executive action, from the traditional parliamentary and judicial channels, to mechanisms such as party structures, departmental reporting, and accounting obligations, and centrally imposed budgetary and financial disciplines, alongside scrutiny by integrity bodies.
David A. Strauss
This chapter asks whether U.S. constitutional law is really law or is instead, as some skeptics say, just a disguised form of politics. The skeptics argue, among other things, that the Constitution is too vague to limit officials, that judges’ decisions about constitutional issues reflect their political views, and that the Constitution is an ineffectual “parchment barrier” against political power. But some important provisions of the Constitution are actually very clear, and judicial precedents can make vague provisions precise. Moreover, all law is, in a sense, a parchment barrier that ultimately depends on officials’ conscientiousness; constitutional law may differ in degree but not in kind. The skeptics’ central error may be a tendency to identify constitutional law too closely with the text of the document. Once U.S. constitutional law is seen as, in important respects, precedent-based common law, its law-like character becomes much more apparent.
This article begins by briefly reconstructing the intellectual history of militant democracy, starting with Loewenstein's work and moving on to the ways in which the doctrine of militant democracy was developed in post-war West German constitutional law in particular. It next compares varieties of militant democracy, mostly, but not only in different post-authoritarian countries, before touching on the jurisprudence of the European Court of Human Rights, which has developed its own perspective on militant democracy. It then returns to the normative core questions surrounding militant democracy and asks whether one might conclude that some strategies for defending democracy are clearly superior to others — and what their implications are for constitutional law.
This chapter explores the progress over the last 116 years in the adoption of the Australian Constitution towards the (unfinished) goal of achieving the fullest possible economic union. It first outlines theoretical concepts that underlie ‘economic union’ within a federation and describes the rather limited form of a negative economic union reflected in the express terms of the new Constitution. The key moves to strengthen Australia's negative economic union over the last 116 years are then considered. The chapter next extends this exercise to the development of a functioning (but still incomplete) positive economic union. Lastly, this chapter concludes with a discussion of the increasing enmeshment of Australia's national economy with global markets, polities, and institutions.
This chapter examines the meaning and significance of the parliamentary reform package introduced by Prime Minister Justin Trudeau’s government in 2015. The proposed measures address themes that have been part of democratic reform agendas for many years, and most of them can be fairly described as low-hanging fruit. The one that stands out from the rest is the Trudeau government’s approach to appointments. Historically, Prime Ministers have made appointments to the Senate, the Supreme Court, and other positions of profile and authority with little to no restrictions on their discretion. The Trudeau government’s creation of independent advisory boards to preside over appointments throughout federal government institutions, and the identification of specified criteria to guide these appointments, represents a major departure from historic practice and a potentially significant shift away from the concentration of power in the hands of the political Executive.
This chapter deals with electoral participation in Australia. It charts the evolution of constitutional law in relation to electoral participation through a focus on the power of the Commonwealth Parliament over federal elections. A starting point of the analysis is a distinction between an emphasis on the breadth of legislative power over federal elections and an emphasis on constraint. The chapter also explains how particular emphasis on the scope of legislative power over election is informed by views taken on the relationship between the legislative power over federal elections and its impact on Australia's democracy. In some cases, it is possible to identify a benign view of such power; in others, a contrary view can be found where the exercise of legislative power over federal elections is seen to threaten Australia's democracy; and of course, there are cases where there is simply an ‘agnostic’ view.
Political parties and party system dynamics are critical to understanding how constitutions work, and why they may not, in spite of well-intentioned designs. Unfortunately, much of the recent literature in comparative constitutional law has paid little attention to the multiple ways our basic constitutional structures are conditioned by political parties and party system dynamics. With a plea for greater integration between studies of parties and constitutions, this article offers an overview of the interaction effects between political parties and party systems, and the three constitutional types found in the democratic world today — presidentialism, parliamentarism, and semi-presidentialism. It concludes with an illustration of these effects from the case of Weimar Germany.
After almost 25 years of jurisprudence under the Canadian Charter of Rights and Freedoms, many of the fears expressed by critics of the Charter have come to pass—judicial review under the Charter of Rights and Freedoms operates as an institutional device to curb more than advance democratic politics and to entrench more than challenge a conservative ideology. The Charter is indeed a potent political weapon, but one that has been and continues to be used to benefit vested interests in society and to debilitate further an already imperfect democratic process of government. For such critics, whether or not that was the intention of its proponents and drafters is beside the point. Indeed, despite some of the best intentions of the ‘Charter-party’, the courts have not delivered on the touted democratic promise of the Charter. This chapter canvasses different critical challenges to the Charter.
This chapter explains and illustrates why the Australian Constitution is mostly concerned with power, and public power in particular. ‘Public power’ here refers to the powers conferred by the Commonwealth and State Constitutions upon the instruments of government. In this light, the chapter is about how there is a greater focus in the Australian legal system upon power, as opposed to rights. It first describes the nature of the structures established by the Commonwealth and State Constitutions. Then the nature of the limitations of, and interactions between, the powers conferred upon those structures is considered, illustrating the different qualities of legislative, executive, and judicial power and the different relationships between those powers.
This chapter discusses the separation of judicial power principle in Australia. First, it considers the history of the principle and whether it was intended or assumed by the Constitution's drafters. Next, the chapter examines the evolution of the principle in the High Court's jurisprudence, as well as its underlying rationales. Hereafter, this chapter considers the practical ramifications of the principle, and the methods and techniques adopted by the High Court to respond to some of its ‘inconvenient’ consequences. Finally, the chapter considers two of the core underlying rationales in the context of controversial issues in contemporary jurisprudence. It analyses the separation of judicial power principle and the protection of individual rights, in addition to the separation of judicial power principle and federalism. The chapter concludes by briefly commenting on likely future developments.
This chapter examines questions about the scope of legislative or executive power and the relationship between them primarily through the lens of the separation of powers in Australia. These have been recurrent issues in both the courts and Parliaments for some time. Hence, the chapter begins by examining the framework for the exercise of the legislative power of the Commonwealth. It does so from the standpoint of the separation of powers, by focusing on three significant issues: the concept of legislative power, delegation of legislative power, and authority to appropriate and grant money to the States. Next, the chapter deals with the nature of the executive power of the Commonwealth, including the extent to which it can be exercised without legislative authorization.
Russell Muirhead and Nancy L. Rosenblum
This chapter examines the ambiguous standing of political parties in the U.S. Constitution. Certain kinds of political parties are not a good fit with the U.S. constitutional order —in particular, parties that are ideologically narrow, highly principled, and uncompromising. Yet the Constitution invites a different kind of party: a “catch-all” party that is heterogeneous and ideologically flexible. The chapter describes two enduring and competing images of the relationship between the citizenry and the Constitution that are reflected in the ambivalent status of parties in the constitutional order: the Constitution as an instrument of popular purpose and as a salutary restraint on the popular will. It also considers how each of these images nourishes anti-partisanship, then discusses partisanship in relation to the constitutional ideal of separation of powers, the threats posed by parliamentary parties, constitutional law’s treatment of antidemocratic parties, and the so-called “paradox of democracy.”