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Anthony F. Lang, Jr. and Antje Wiener

This chapter provides an introduction and framework to the volume. It provides a historical overview of constitutional thought and highlights the four principles of constitutionalism: rule of law, separation of powers, constituent power, and rights. It demonstrates the ways in which this history and these principles are relevant for global constitutionalism. It argues that a practice-based approach to global constitutionalism provides space for contestation of the traditional liberal history and principles of constitutional thought, highlighting new ways in which this idea can be understood and assessed.

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Edited by Corien Prins, Colette Cuijpers, Peter L. Lindseth and Mônica Rosina

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Edited by Corien Prins, Colette Cuijpers, Peter L. Lindseth and Mônica Rosina

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Maurice Adams and Corien Prins

The transformative impact of digitalization on society and the state of democracy can scarcely be overestimated. Effects are visible within the national state and across borders, as well as on knowledge production and political participation and social structures. In this introductory chapter, the variety of norms and ideals which are reflected in just as many different conceptions of democracy are singled out with regard to the respective chapters in this volume. Based on this, also some further thoughts on the topic are elaborated upon and a networked approach is advocated.

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Bernardo Sordi

This chapter reflects on the history of administrative law against the background of the emergence and evolution of a distinct form of administrative power within the European state over the last two and half centuries. The chapter outlines, in a very general way, answers to several comparative questions: in what ways have the various paths to droit administratif in France, or Verwaltungsrecht in Germany, converged or diverged from the path to administrative law in England (and later America)? Similarly, how have the German or French paths to the Rechtsstaat or the État de droit, respectively, converged or diverged from the Anglo-American path to the Rule of Law? This contribution proceeds on the premise that the particular routes to droit administratif, Verwaltungsrecht, or administrative law must be understood with at least some sensitivity to the various processes of state-formation as well as to the different constitutional histories of the countries concerned. Nevertheless, it would be an error to believe that a comparison of state-building processes could mechanistically provide a clear scale for measuring the intensity of the processes by which a distinct law of administration took shape. The history of state-formation in the various corners of Europe proceeded not merely according to its own specific tempos but also on a different factual level from that of the conceptual and legal representation, which is in fact the focus of our discussion. Thus, it must be stressed that the divergences and convergences we propose to trace are limited to representations within legal orders, and do not extend to the underlying history of state power per se. The analysis confines itself to explaining the different techniques of conceptualization employed at different times and in different national contexts in relation to the identification and execution of public tasks understood as specifically belonging to the administrative sphere. Our aim here is simply to define the different juridical articulations within which the institutional enterprises definable as states emerged historically. A second premise, which is of a chronological nature, flows from the first. The conscious emergence of a power, tasks, or law considered as ‘administrative’ is a relatively recent phenomenon, something reflected in the historical development of languages, lexicons, and concepts. In France, for example, the terms administration publique and bureaucratie did not become widely used before 1750, and droit administratif did not make its first appearance until the early years of the nineteenth century. Moreover, Verwaltungsrecht in Germany, or administrative law in the English-speaking world, did not appear until well into the nineteenth century (and in the English case arguably only came into wide usage in the twentieth). We must therefore be aware that the question of administrative power or administrative law has its own history, which is not necessarily coterminous with history of forms of public authority. Rather, the emergence of a specifically ‘administrative’ power or law is intrinsically a modern phenomenon, dating back no more than 200 years or so. Thus, the questions this chapter seeks to answer only make sense for the past two centuries: for the nineteenth century, in which an identifiably ‘administrative’ space, as well as corresponding understandings of ‘administrative’ power and law, emerged; and for the twentieth century, in which the vast expansion of ‘administrative’ personnel, responsibilities, organizations, and establishments (including, perhaps most importantly, the diffusion of public services and of social administration) became an inescapable feature of modern governance. It is precisely in this time span that the divergences and convergences between the different paths of state-formation become noticeable and measurable.

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Introduction

Second Edition

Susan Rose-Ackerman, Peter L. Lindseth and Blake Emerson

This volume, like the first edition, attempts to capture the complexity of the field of comparative administrative law while distilling certain key elements for further study. Part I concentrates on the relationship between administrative and constitutional law—uncertain, contested, and deeply essential. Part II focuses on a key aspect of government structure—administrative independence with its manifold implications for separation of powers, democratic self-government, and the boundary between law, politics, and policy. Next, Part III highlights the tensions between impartial expertise and public accountability, especially when the executive and independent agencies make general policies. Part IV discusses administrative litigation and the role of the courts in reviewing both individual decisions and secondary norms (‘rules’ in US parlance). Part V considers how administrative law is shaping and is being shaped by the changing boundaries of the state. Part V.A considers the shifting boundary between the public and the private sectors, and part V.B concentrates explicitly on the European Union and its complex relationship with the Member States.

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Minority rights up through the Marshall Court, 1789–1835

Two Centuries of Judicial Review on Trial

Leslie F. Goldstein

Summarizes the racially discriminatory policies and entrenchments of black slavery adopted by elected branches, both state and federal, from 1789 to Civil War. Analyzes all slave cases that Supreme Court handled from 1789–1835, and major Indian cases of that era. Concludes that the Court was less anti-slavery than was the (indirectly) electorally accountable Attorney General of the U.S. Also demonstrates that Marshall Court decisions became less pro-slavery beginning in 1817, the year the Colonization Society was founded. Supreme Court justices acting on circuit declared unconstitutional the South Carolina Negro Seamen law that jailed free blacks while they were in port, and refused to apply the Virginia law that did the same. Describes Indian Removal Policy, including Trail of Tears. Concludes that Marshall Court stood up for the rights of Native Americans, but the elected branches did more than the Court to restrict and punish slave traders. KEYWORDS: Johnson and Graham’s Lessee v. McIntosh (1823) Cherokee Cases Indian Removal slave trade legislative racial discrimination in U.S. Negro Seamen Laws

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Silvia Suteu

This chapter aims to provide initial answers to the basic question of whether and how participation in constitution-making delivers for women. The chapter proceeds by first outlining the contours of the debate surrounding popular participation in constitution-making, identifying the benefits and potential pitfalls such participation may yield. The chapter then looks at three instances of popular involvement in constitutional change: the 2014 Scottish independence referendum, the 2012-14 Irish Constitutional Convention and the 2011-14 Tunisian constitution-making experience, analysing the level and nature of women’s participation in all these processes. Subsequently, the chapter evaluates the successes and failures of participatory mechanisms such as referendums, constitutional conventions and public consultations in empowering women as equal participants, and their ability to ensure gender-sensitive deliberations. The chapter also raises questions as to whether participation is to be resorted to in all cases of constitutional reform and the propensity for it to be an obstacle to, rather than a vehicle for, gender equality.

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Helen Irving

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Edited by Rosalind Dixon and Tom Ginsburg