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The 1830s saw a reconsideration of the institution of slavery across the South, in which the sense of slavery as an anomalous institution within a republican society gave way to the articulation of more aggressive claim of slavery as a positive good. As southern intellectuals and polemists shifted from apology for slavery to celebration of it, the sanctity of property rights both in slaves and more generally came to be interpreted as a measure of the Southern States’ success in balancing freedom and order. Alongside that shift, the importance of constitutions within the Southern imaginary grew. This chapter traces the constitutionalization of slavery that these developments gave rise to. In the first instance, slavery as an issue was “constitutionalized” through an overt association of slavery with constitutional rights. At a second level, constitutionalization proceeded in a greater attachment to extant constitutions and a call for their preservation as central objects of political life. This chapter shows how these two developments, placed together, resulted in a conflux of slavery and constitution that made defense of each imperative to the other.
The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) provides for a ‘self-contained’ annulment mechanism independent from domestic courts and laws. This mechanism is available to challenge the awards rendered by arbitration tribunals operating only under this Convention. Chapter 16 focuses on the annulment proceedings that this Convention establishes, while annulment in other contexts is dealt with in Chapter 11. More specifically, it first sheds light on the main features of ICSID Convention annulment proceedings before analysing in light of the relevant arbitration practice the main grounds for annulment relied upon before annulment committees – namely, manifest excess of powers, serious departure from a fundamental rule of procedure and failure to state reasons. Chapter 16 then provides an overview of the two additional grounds mentioned in the Convention: improper constitution of a tribunal and corruption on the part of a member of the tribunal.
The end of the Second World War and the establishment of the United Nations did not signal the end of ‘civilisation’. In fact, one of the most famous and prolonged legal battles of the Cold War period, the South West Africa saga, was fought over the the justiciability and content of the ‘sacred trust of civilisation’. This chapter offers a close reading of a wide range of materials regarding the clash between critics and supporters of apartheid in front of the International Court of Justice. In so doing, it maps the gradual domestication of the Applicants’ case from a detailed exposition of racial capitalism in Namibia to a narrow condemnation of apartheid as being discriminatory against ‘exceptional’ black individuals. Finally, by detailing the process that led to Namibia’s independence, the chapter shows the heavy influence of international law and international actors in safeguarding the interests of white settlers and transnational capital in the country through the usage of constitutional law and human rights.
This introductory chapter reflects upon the centrality of the Constitution to American political life and outlines the central themes of this book. It provides a summary of its overarching argument that the navigation of abolitionist pressure on slavery in the District of Columbia in the 1830s prompted a turn toward the concept of spirit, and particularly the spirit of 1787, within American constitutional thought. The chapter contains a plan of the subsequent chapters.
This chapter explores the ways in which the interracial immediatist abolition movement of the early 1830s fashioned a conception of abolition as the fulfillment of commitments made at the time of the Revolution but which subsequent actions had left unmet. Casting themselves as acting in parallel to the founding fathers and expressing concern for the possibility of transmitting an unfulfilled revolutionary settlement to posterity, abolitionists sought to navigate their relationship with the nation’s founding documents. Attempting to systematize this relationship, some came to argue that the Constitution ought to be interpreted in accordance with the Declaration of Independence. Others would go further and argue that the Declaration was more fundamental than the U.S. Constitution itself. Just as earlier arguments had cultivated a sense of American national identity tied to the principle of equality, these variations furthered the association of the claim that “all men are created equal” with the American sense of self and contributed to the formation of a national identity with significant ideological content.
In this concluding chapter, I consider how the development of a particular attachment to the founding has shaped constitutional development in the United States and how an alterative grounding in the constitutional thought of Thomas Paine and Thomas Jefferson might provide intellectual resources for a renewed democratic constitutionalism in contemporary American politics.
Nigeria1 has a mixed legal system consisting of common law, sharia law,2 and customary law.3 At the pinnacle of these laws is the 1999 Constitution.4 The judiciary powers are vested in courts established by the constitution.5 Arbitration in Nigeria is governed by the federal statute Arbitration & Conciliation Act 1988 (ACA),6 which incorporates the 1985 UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law), with some minor modifications. Nigeria is a federal system where several states have enacted their own arbitration legislation. One example of this is the Lagos State Arbitration Law of 2009 (LSAL).7 It applies to all arbitration proceedings in the state of Lagos that are not specifically governed by any other law. As compared to the federal statute, the Lagos Arbitration Act is more modern, having been adopted in 2009.
Missouri’s application for statehood was immediately and universally recognized as a moment of crisis for the Union. The resolution of the crisis would come in the form of a compromise that came to structure antebellum responses to intersectional conflict over slavery until its collapse in the Civil War. But in moving toward this compromise, these congressional debates generated important components of a constitutional imaginary that would be invoked to navigate constitutional debates over slavery in the following decades. Three elements are evident in the congressional debates over Missouri’s admission that provided building blocks for future constitutional development; the notion of a chronological gap between an authoritative founding and the contemporary moment, the idea of compromise, and the deployment of a founding spirit as a basis for deriving constitutional meaning. This chapter traces the complex interactions of these elements within the Missouri debates, showing that while they failed to consolidate into a singular constitutional imaginary they provided the context within which the history discussed in the following chapters unfolded.
This chapter examines the afterlife of the Compact of 1836 in abolitionist and proslavery thought. To a significant extent abolitionists after 1836 accepted the authority of the spirit of 1787 and sought to fashion an abolitionism within that framework. One strand of such a response was represented in the Garrisonian rejection of the Constitution as a legitimate authority. A second strand challenged the characterization of that spirit as protective of slavery through a claim that the Constitution represented an attempt by antislavery founders to grapple with the reality of slavery in their historical moment. In concert with these developments, after 1836 supporters of slavery began to refine their own understanding of the role of spirit in constitutional interpretation by prioritizing the recognition of slavery as a constitutional institution. To different ends both groups would gravitate in the 1840s toward a view of the Constitution as correctly understood only with reference to the attitudes that were prevalent at the time of its creation. Thus the legacy of the compact of 1836 would be a legitimization of the constitutional authority of 1787–88.
A transformation of the Declaration of Independence’s symbolism in the 1820s that proved useful for those advancing claims on behalf of black Americans. In the first instance, the Declaration became more closely associated with a commitment to equality. In the second instance, the project of unifying the nation around the sacred text of the Declaration had the effect of providing a written expression of American nationalism as a value-laden concept. This chapter traces the ways in which free black writers sought to exploit both opportunities, ultimately generating an understanding of American citizenship that would inform the wider abolitionist movement of the 1830s. These efforts saw free black writers advance claims upon American citizenship with pamphlets, including David Walker’s Appeal, and the first African American owned and operated newspaper in the United States, Freedom’s Journal. Associating this understanding of the Declaration with the U.S. Constitution provided a framework for understanding the Constitution as committed to an expansive notion of the People and provided an important orientating concept for the abolitionist movement as it evolved into the 1830s.
This prologue sets the scene by introducing the book’s main thesis that during the debt crisis, in particular, the years 2010-2012, the European Union has gone through a constitutional transformation. The transformation is characterised by a broadening of the currency union’s conception of stability. Its key manifestations are financial assistance for distressed member states and government bond purchases by the European Central Bank. The transformation can be understood through the lens of solidarity as this makes it possible to conceptualise the unity between the member states and to analyse how political leaders managed to uphold this unity during the crisis. And ultimately, it allows for an understanding of why instead of approving the transformation in Pringle and Gauweiler on the merits, the ECJ should have done so through silence.
This chapter explores the normative background for the Weimar Republic’s demise, paying particular attention to the shortcomings in the Weimar Constitution (governance by presidential emergency decrees, based on Article 48; and the absence of a constitutional court with clear competencies for judicial review) that abetted democracy’s collapse. We closely examine the controversy in fall 1932 over whether the president, as the “guardian of the constitution,” was ex officio beyond judicial control, as Carl Schmitt claimed, or if such a viewpoint contradicted the spirit of the democratic Weimar Constitution as Hans Kelsen claimed. Kelsen’s critique of Schmitt’s views on the normative position of the president’s normative position and powers in late 1932 was one of the last forceful theoretical defenses of Weimar democracy.
This chapter explains the further development throughout the twentieth century of public finance law and its impact on the distribution of financial authority between parliaments, executives and judiciaries. It accounts for the delegation of ever-greater financial authority to executive governments as a result of a number of major events: the world wars, the growth of the welfare state, the development of central banking and the influence of private-sector managerial philosophies on public administration. Taking a broad sample of Australia, Canadian, New Zealand and UK legislation and judicial doctrine, the chapter describes how and why sovereign borrowing was severed from parliamentary processes, the preponderance of public expenditure came to be authorised by standing (rather than annual) appropriation legislation, central banks acquired independent authority to provide monetary finance to treasuries and how public auditing functions became more concerned with the efficient (rather than lawful) use of public money. The manner in which judiciaries' jettisoned their private-property protecting attitude to taxation legislation is also explained.
This chapter provides an historical analysis of the UK judiciary's limited role in central government public finance throughout the eighteenth and nineteenth centuries. Tax litigation represented the high point of judicial involvement in public finance, but judges' hostility to fiscal legislation did little to bolster Parliament's revenue-raising interests. Mid-nineteenth century explorations with judicial review of appropriation legislation never became a settled practice and the judiciary imposed no discernible constraints on the legal limits of public borrowing (by the Treasury) or lending (by the Bank of England). By the conclusion of the nineteenth century, it was clear that the common law judiciary would not have a prominent role in the model of parliamentary public finance which was exported throughout the common law world. Various celebrated and important cases are critiqued, including: Auckland Harbour Board v The King; Bowles v Bank of England; the Bankers' Case; and The Queen v The Lords Commissioners of the Treasury.
This chapter describes the export of the model of parliamentary public finance developed in the UK to the colonies, dominions and independent states which emerged from the British Empire. It opens by surveying the critical similarities and differences between public finance in the British and US constitutional traditions, before moving to explain how finance was treated in Canadian and Australasian colonial constitutions. Thereafter, the chapter explains how finance provisions became a form of 'constitutional boilerplate', adopted by independent dominions and republics in the twentieth century. By the conclusion of that constitutional itinerary, it is observed that the distribution of financial authority between Parliament and the executive government in nineteenth century Britain became the norm prevailing in the parliamentary constitutional world. Close attention is paid to the drafting history and provisions of constitutional documents from a number of parliamentary jurisdictions (including Australia, Canada, Indian, Malaysia, Nepal and Nigeria), as well as judicial decisions on public finance throughout the Commonwealth of Nations.
This chapter commences a case study analysis into the influence of economic and financial conditions on the operation of public finance law and the constitutional distribution of authority between parliaments and executive governments. The fiscal activities (taxing and spending) of the central governments of the UK and the Commonwealth of Australian between 2005 and 2016 are selected for analysis. The chapter begins with a detailed examination of appropriation and taxation legislation in the two jurisdictions, including the respective financing contribution of annual and standing statutes and their role in delegating authority to treasury departments. The chapter then examines the influence of expansions and contractions in economic output on the balance of constitutional authority possessed by parliaments, with a special focus on the impact of the financial crisis. Thereafter, the often-hidden reality of public spending in breach of appropriation legislation is studied, along with the legal frameworks governing public accounts and audit. The chapter concludes by observing the vast amount of fiscal authority delegated to treasury departments by public finance law.
This chapter provides a case study analysis of the operation of public finance law concerning sovereign debt and monetary finance in the UK and Australia between 2005 and 2016. The legal and financial mechanics of sovereign borrowing and monetary finance are closely examined by reference to the authority of central banks and treasuries to finance the state beyond the point of fiscal deficit. The very broad powers delegated to treasuries over sovereign debt are scrutinised in the context of vastly different economic conditions, and their capacity to shrink the financial authority held by parliaments is observed. Special attention is then given to the monetary financing powers of central banks, particularly the Bank of England. The emergency monetary finance provided by the Bank of England during the financial crisis is surveyed, and the public financing aspect of 'unconventional' monetary policy, particularly quantitative easing, is examined. The chapter closes by observing the absence of meaningful legislative governance of debt and monetary finance in the context of financial or economic emergencies.
Drawing together the book's analyses of public finance law and parliamentary constitutionalism, this chapter argues against the descriptive validity of the idea of parliamentary control of public money and observes the implications of that argument for democratic control of public finance. It begins by settling on an analytical framework for assessing whether parliament does indeed 'control' public finance built upon an idea of 'financial self-rule'. That framework is then applied to the legal and institutional practices which were observed in earlier chapters: concluding that parliaments cannot be said to have control of public finance in any studied jurisdiction. After discussing how broadly that conclusion can be generalised, the chapter evaluates different descriptive models of public finance in parliamentary constitutions: executive control, financial interdependence and parliamentary ratification. The chapter concludes that the latter 'ratification' model is most compelling and explains why that model secures a low level of financial self-rule.
Recent constitution-making episodes in countries such as Venezuela, Bolivia, Hungary, and Iceland have highlighted the important, varied roles that courts might play during constitution-making processes undertaken from a democratic starting point. This chapter develops a typology of the functions that courts have played during these processes. In some cases, courts have played a catalytic function, spurring constitution making that otherwise might not have occurred; in others, they have played a blocking function, stopping constitution making from taking place; and in a third set of cases, they have played a shaping function, neither catalyzing nor preventing constitution making, but instead impacting the nature of the process. These functions, in turn, tend to be tied to different theories of constitution making. What emerges from this survey is that there is no single best mode of judicial intervention during constitution making; the optimal response is contextual. A key descriptive goal is to understand how political context affects the ways in which courts act; a key normative goal is to improve the fit between the nature of judicial action and the needs of a given context.
In many democratic countries, talented individuals run for the nation’s top elected office under the banner of newly formed parties. Once in a while, these individuals manage to win. In France, for example, a new party called En Marche! was formed on April 6, 2016. The party’s full name, “La République En Marche!” roughly translates as “The Republic on the Move!” This party backed Emmanuel Macron for the French presidency in 2017. Macron received 24 percent of the vote in the first round of the French presidential election on April 23, placing first out of five candidates. A second-round runoff with the top two candidates was then held, and Macron was elected President with 66.1 percent of the vote. In the legislative elections of June 2017, En Marche! also won a majority of the seats in the National Assembly, the French parliament.