Browsing by Subject "Constitutional law"

Now showing 1 - 9 of 9

A moral psychological primary source analysis of Brown v. Board of Education
(2017-12-06) Hardee, Benjamin Dawson; Jacobsohn, Gary J., 1946-; Powe, Lucas; Perry, HW; Gawronski, Bertram
This work applies the social intuitionist psychological model of moral judgment to explain the U.S. Supreme Court’s Brown v. Board of Education (1954) decision-making process. Based on an examination of the available Brown primary source material–––conference notes, interchamber and private memoranda, missives to private individuals, written brainstorms, and clerk recollections–––this work argues that most of the justices’ decision-making in Brown is captured by the model and associated psychological phenomena. The analysis clarifies Brown’s constitutional holding and the nature of the constitutional violation and harm the justices intended to proscribe. The work concludes that Brown has a consequentialist, not a deontological or colorblind, provenance and purpose.
Constitutional technocracy : the theoretical foundations
(2022-07-29) Moncrieff, Abigail R.; Perry, H. W.; Gregg, Benjamin; Levinson, Sanford; Sager, Lawrence
This dissertation argues that John Stuart and Harriet Taylor Mill were the first constitutional technocrats. “Constitutional technocracy” is obviously not a new idea given that I found it in the Mills’ 163-year-old work. But “constitutional technocracy” is a new name for an unusual set of ideas: a set of ideas that many prior scholars have labeled “muddleheaded” when reading the Mills’ oeuvre. The source of the “muddleheaded” critique is the apparent tension between technocracy and liberalism. Historically, “technocracy” is a system of anti-liberal political institutions: the complete consolidation of power in scientific experts who can discover and implement objectively correct laws. Liberalism, by contrast, argues that the imperative of personal freedom is morally prior to and fundamentally incommensurate with any benefits that might be obtained from scientifically correct laws. “Liberal technocracy” therefore seems like an oxymoron. The Mills have appeared muddleheaded because they were liberal technocrats. They embraced technocracy as an aspirational standard of legitimacy while simultaneously arguing—in one of the most enduring pieces of political writing ever produced—for the importance of individual freedom. Understood properly, however, the Mills’ version of technocracy, which I call “constitutional technocracy”, is the farthest possible thing from muddleheaded. It is, in fact, the only version of technocracy that is fully and coherently technocratic. The core idea of constitutional technocracy is that technocratic governance, in order to function as intended, depends on liberal political institutions. The technocratic authors who advocate centralization of power are evincing an unscientific overconfidence in human governors’ capacity to discover objectively correct laws. In reality, the discovery of objectively correct laws—particularly given the ineradicable conditions of dynamism and uncertainty in human societies—requires perpetual experimentation with new approaches. That kind of experimentation can be accomplished most cheaply through diffusion of political power: also known as “liberty”. This dissertation merely sketches the theoretical foundations of constitutional technocracy. I will develop the theory much more fully in later work. In the process of sketching the basics here, however, I demonstrate that constitutional technocracy’s birthplace is not this dissertation; it is the works of John Stuart and Harriet Taylor Mill.
Drones & police departments : usage, law, issues, and recommendations
(2020-06-29) Drew, David Patrick; Greenberg, Sherri
The report investigates the current capabilities and use cases for drones deployed by police departments in the United States and makes recommendations on their use. I use data published by the Bard College Center for the Study of the Drone, Muckrock, and news articles to establish an estimate of the current number and type of drones used by American police departments and how they are used. I investigate the current constitutional, federal, state, and local restrictions on the use of drones, finding that police departments may use them at their discretion unless circumscribed by state or local law. Finally, I provide recommendations as to how police departments should use drones according to use case.
For ourselves and the generations to come : constitutional law in Afghanistan, 1964-2004
(2023-04-21) Hayden, Jeffrey T.; Ayoub, Samy A.; Suri, Jeremi
In the context of modern Afghan political and legal history, the 1964 and 2004 constitutions were once lauded as promising steps toward the country’s adoption of representative government, constitutionalism, and the equitable rule of law. However, the governments that instituted these documents —the Kingdom of Afghanistan and the Islamic Republic of Afghanistan, respectively— collapsed to political and social instability not long after adopting their constitutions. While historical and political commentary has blamed illiberal governance for the failure of these governments, relatively few projects have studied the 1964 and 2004 constitutions as potential contributors to this breakdown in governance. This thesis takes a comparative legal perspective to study the history of the 1964 and 2004 constitutions, their respective intellectual influences, and their effects on Afghan society in the 20th and 21st centuries. The first chapter centers on the pre-modern legal history of Afghanistan, including geographic and social influences on approaches to governance and the impact of the Barakzai monarchy on Afghan nationhood. The second chapter takes a comparative legal approach to analyze the contents of the 1964 and 2004 constitutions, the institutions both documents created, and their approaches to divesting and consolidating political power. The third chapter studies the practical application of the constitutions through the rule of law, their enumerated positions on religion, and the effect of the War in Afghanistan. This thesis argues that the 1964 and 2004 constitutions were greatly informed by authoritarian policies inherited from pre- and early modern Afghan political systems, particularly the primacy of centralized executive leadership. These practices incentivized autocratic political leadership, disincentivized strong representative governance, and undermined the rule of law under the 1964 and 2004 constitutional frameworks.
Furtive Blackness : on being in and outside of law
(2021-05-05) Wilson, Tabias Olajuawon; Marshall, Stephen H.; Thompson, Shirley; Perry, Imani; Livermon, Xavier; Arroyo-Martinez, Jossianna
This dissertation is comprised of three chapters; Furtive Blackness: On Blackness and Being (“Furtive Blackness”), The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) and Sexual Profiling: BlaQueer Furtivity. It takes a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law has been wholly insufficient to understand how law encounters human life. This work is about the hermeneutics of law. While I center case history and Black letter law, I am also arguing explicitly that the law has a dynamic life beyond the courtroom, a life of constructing and dissembling Black life. Together, these essays and exercises in legal philosophy are pointing toward a new method of thinking about law, a method that makes central the material reality of the Black—and BlaQueer—in black letter law.
Mississippi unconstitutional legislation, 1817-1942
(1943) Howerton, Huey B. (Huey Blair), 1895-; Not available
The impact of public participation in constitution making
(2018-10-09) Hudson, Alexander Edward; Elkins, Zachary, 1970-; Brinks, Daniel; Jacobsohn, Gary; Levinson, Sanford; Wlezien, Christopher
Public participation has long been an important element of constitution-making processes. It increasingly takes place early in the process, ostensibly offering citizens an opportunity to contribute directly to the text of their new national charter. Despite growth in the use and political prominence of participatory mechanisms, we know little about their effects. This dissertation argues that the impact of public participation on the text of constitutions is small in almost all cases, but that there are systematic ways in which this impact varies. Specifically, the variation in the effects of public participation is for the most part determined by the strength of political parties in the constitution-making process. In constitution-making bodies where there are strong parties, there is very little room for effective public participation. In such systems, there will be almost no impact from public participation, even where significant amounts of time and money are devoted to facilitating it. Conversely, in constitution-making bodies where political parties are not present, or where parties are weak, there will be a greater impact from public participation, as drafters are unprotected from pressure groups and also more reliant on the information they provide. I further argue that the informational challenges of assessing the impact of public participation prevent the majority of participants from determining whether or not the participation program was effective. Thus, public participation programs can serve to increase public support for a constitution even when drafters do not make any changes to the content of the constitution in response to public input. This theory is tested through studies of three cases of highly participatory constitution making. Keeping the level and means of participation relatively constant, the three cases have been chosen to include a case with strong parties (South Africa), a case with weak parties (Brazil), and a case where the constitution was drafted without parties (Iceland). As predicted, the South African case shows negligible impacts from public participation, Brazil has some scattered impacts, and Iceland shows high levels of impact. The findings here demonstrate that the expected relationships between citizens, political parties, and interest groups exist even in constitution-making processes. Moreover, it shows that there are trade-offs between stability, textual quality, and more effective public input.
The politics of sovereignty : federalism in American political development
(2016-12) Ewing, Connor Maxwell; Tulis, Jeffrey; Jacobsohn, Gary J., 1946-; Levinson, Sanford V; Perry, H.W.; Brinks, Daniel M
The development of American federalism is a story of contested sovereignty, and those contests are fundamentally shaped by the evolving structures, relationships, and understandings of the constitutional order. This dissertation seeks to show how the American federal system is both cause and effect of political development. Even as it structures legal and political contestation, American federalism is shaped—even redefined—by such contestation. Central to the account of American federalism that I advance are two related arguments about the nature of the federal system. The first is that the Constitution’s definition of the state-federal relationship is structurally underdeterminate: while the Constitution constrains the set of permissible state-federal relationships, it fixes no single definition. Rather than establish a determinate division of state and national powers, the Constitution establishes a range of parameters for their relationship and sets forth the legal and political processes through which that relationship is contested, defined, and revised. As a result, the American federal system both shapes and is shaped by constitutionally structured politics. Developing an implication of this argument, the second argument holds that notions and definitions of sovereignty are structured relationally. Articulations of national power reciprocally define a category of state powers, just as invocation of local concerns over which states have authority reciprocally define national concerns over which the national government has authority. On this account federalism is both an independent and a dependent variable, an approach that shifts our focus from federalism and American political development to federalism in American political development. By foregrounding the underdeterminacy of the federal system and interrogating the constitutional construction it anticipates, we can glimpse the intertwined contingency and continuity of American constitutional development. This dissertation is broadly divided into two parts—the first theoretical, the second developmental—each of which consists of two components. The resulting four chapters constitute the core of the project. The theoretical chapters (Chapters One and Two) provide a framework for understanding the federal system both in the general context of the American Constitution and, more specifically, in contrast with the separation of powers. This framework is fundamentally structured by the underdeterminate constitutional division of state and national powers and the consequent need for constitutional construction of the state-federal relationship. The developmental chapters (Chapters Three and Four) operationalize the theoretical framework developed in the first two chapters in two different domains: constitutional jurisprudence and a discrete episode of the political construction of the state-federal relationship. Taken together, these chapters are intended to illustrate the central argument of the preceding chapters: that the constitutional design of the federal system anticipates development and that this development is inflected by the institutional logics of the principal institutions of American government. The dissertation concludes with a brief reflection on the two conceptual cornerstones of the analysis presented in the preceding chapters: constitutional construction and constitutional logics.
Weak review, strong court : judicial institutions and influence in the US and France
(2023-05-05) Blass, Abby (Ph. D in government); Brinks, Daniel M., 1961-; Jacobsohn, Gary; Elkins, Zachary; Theriault, Sean; Perez-Liñan, Aníbal
This dissertation explores differences in the willingness of high court judges to use their authority of constitutional review to participate in national policymaking. Through quantitative and qualitative analysis of judicial decisions invalidating national laws over thirty years in the United States and France, I show how, contrary to conventional wisdom, judges with weaker forms of review in political systems that offer straightforward ways to displace judicial opinions show greater willingness to review and to invalidate national laws, over a broader range of policy domains, than their counterparts with strong form review in fragmented political environments that offer judges the “last word”. Drawing on institutional and strategic insights about judicial decision making, I show that judges perceive and experience the costs of exceeding the tolerance of political actors with the power to curtail their institutional autonomy and authority, and over time they learn to balance the immediate cost of losing a discrete policy battle versus the systemic cost of losing their institutional capacity to contribute to contemporary policy debates. My results show that, counterintuitively, giving judges the ‘last word’ on matters of policy may be counterproductive to the project of judicial empowerment, and the contrast in judicial styles with weak and strong review suggests that scholars must be more nuanced in evaluating judicial power, looking beyond the more confrontational and disruptive interventions of the Supreme Court as the standard model of judicial influence, to the more cooperative and consensual engagement of the French Constitutional Council.