Search result: 12 articles

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János Martonyi
Professor emeritus, University of Szeged; former Minister of Foreign Affairs (1998-2002 and 2010-2014).
Article

Perspectives on Comparative Federalism

The American Experience in the Pre-incorporation Era

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords 14th amendment, anti-federalists, Barron v. Baltimore (1833), Board of Education and other Cases (1954), Civil Rights Cases (1883), Bill of Rights, Brown v. Constitutional Convention (1787), Federalists, Holmes v. Jennsion (1840), Plessy v. Ferguson (1896), The Federalist (1787-1788)
Authors Kenneth R. Stevens
AbstractAuthor's information

    Today the Bill of Rights is understood to limit not only the federal government but also the power of the states to infringe on the civil liberties of citizens. This was not always the case. In the early days of the republic, most Americans feared federal authority far more than the states. This remained the case until passage of the 14th amendment to the Constitution followed by a series of interpretations over the years by the Supreme Court that broadened its scope. Some delegates at the convention of 1787 and other critics during ratification complained that the Constitution did not include a bill of rights, but others objected that the people needed such protections from government power. It became clear, however, that ratification could not be attained without inclusion of a Bill of Rights, which were adopted as amendments in 1791. In 1833, the Supreme Court ruled, in Barron v. Baltimore, that the provisions of the Bill of Rights imposed restrictions only on the federal government and not on the states. Passage of the 14th amendment in 1868 made the Bill of Rights restrictions on the states. Over the years, federal courts increasingly broadened the authority of the Bill of Rights as limitations on the states.


Kenneth R. Stevens
Professor, AddRan College of Liberal Arts, Texas Christian University. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Rights in the Australian Federation

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Australian Constitution, bill of rights, constitutional rights, democracy, federalism, freedom of interstate trade, freedom of religion, implied rights, judicial independence, property rights, right to trial by jury, separation of powers
Authors Nicholas Aroney and James Stellios
AbstractAuthor's information

    The Australian Constitution is unique among constitutional instruments. It was primarily designed to federate self-governing British colonies within the British constitutional tradition and to establish institutions of federal government. As such, the constitutional instrument does not contain an entrenched bill of rights. Yet Australia has been a stable federal democracy since its establishment in 1901 and, by international standards, it is consistently assessed as maintaining high levels of personal freedom, political rights, civil liberties and the rule of law. This article considers the place of rights in the Australian federation against Australian constitutional history and its constitutional context.


Nicholas Aroney
Nicholas Aroney is Professor of Constitutional Law, The University of Queensland. The support of Australian Research Council grant FT100100469 is gratefully acknowledged. Thanks are also due to Terry East for his very capable research assistance. James Stellios is Professor, Law School, Australian National University. Part of this article benefited from the Australian Research Council’s Discovery Projects funding scheme: DP140101218. Part of this article benefited from the Australian Research Council’s Discovery Projects funding scheme: DP140101218. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.

James Stellios
Article

Access_open The Application of European Constitutional Values in EU Member States

The Case of the Fundamental Law of Hungary

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Article 2 and 7 TEU, democratic backsliding, Hungary, infringement procedure, rule-of-law mechanism
Authors Gábor Halmai
AbstractAuthor's information

    This article deals with the backsliding of liberal democracy in Hungary, after 2010, and also with the ways in which the European Union (EU) has coped with the deviations from the shared values of rule of law and democracy in one of its Member States. The article argues that during the fight over the compliance with the core values of the EU pronounced in Article 2 TEU with the Hungarian government, the EU institutions so far have proven incapable of enforcing compliance, which has considerably undermined not only the legitimacy of the Commission but also that of the entire rule-of-law oversight.


Gábor Halmai
Professor and Chair of Comparative Constitutional Law, European University Institute, Department of Law, Florence. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Incorporation Doctrine’s Federalism Costs

A Cautionary Note for the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Bill of Rights, Charter of Fundamental Rights, diversity of human flourishing, federalism, incorporation, individual liberty, jurisdictional competition
Authors Lee J. Strang
AbstractAuthor's information

    In this article, I first briefly describe the U.S. Supreme Court’s decades-long process of incorporating the federal Bill of Rights against the states. Second, I argue that incorporation of the Bill of Rights has come with significant costs to federalism in the United States. Third, I suggest that the American experience provides a cautionary note for the European Union as it grapples with the question of whether and to what extent to apply the Charter of Fundamental Rights to its constituent nations. I end by identifying options available to the European Union to avoid at least some of this harm to federalism while, at the same time, securing some of the benefit that might be occasioned by incorporating the Charter.


Lee J. Strang
John W. Stoepler Professor of Law and Values, University of Toledo College of Law. Thank you to Csongor Istvan Nagy for organizing and hosting this conference, and to the conference participants for their thoughtful comments and criticisms. Thank you as well to Michael Stahl for his valuable research assistance. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Access_open The Ambivalent Shadow of the Pre-Wilsonian Rise of International Law

Journal Erasmus Law Review, Issue 2 2014
Keywords American Society of International Law, Peace-Through-Law Movement, Harvard Law Library: League of Nations, President Woodrow Wilson, Pre-Wilsonianism
Authors Dr Ignacio de la Rasilla del Moral Ph.D.
AbstractAuthor's information

    The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a 'moralistic-legalistic approach to international relations' remains little studied. A survey of the rise of international legal literature in the United States from the mid-nineteenth century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the United States. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed by the realist founders of the field of 'international relations' to the 'moralistic-legalistic approach to international relations'.


Dr Ignacio de la Rasilla del Moral Ph.D.
Ignacio de la Rasilla del Moral is Lecturer in Law at the Brunel Law School of Brunel University, London. In the Spring of 2014 he served as Visiting Research Fellow at the Lauterpacht Research Centre for International Law of the University of Cambridge as recipient of a British Academy/Leverhulme Small Research Grant.

Giuseppe Martinico
Lecturer in Law at the University of Pisa; PhD, Sant'Anna School of Advanced Studies, Pisa. I would like to thank Emanuele Pollio for his comments and Andrea Serafino and Alberto Montagner for their help in preparing a preliminary version of this work.
Article

Access_open Constitutionele toetsing in een democratie zonder volk

Een kelseniaanse rechtvaardiging voor het Europees Hof van Justitie

Journal Netherlands Journal of Legal Philosophy, Issue 2 2010
Keywords Kelsen, Democracy, Legitimacy, European Union, European Court of Justice
Authors Quoc Loc Hong
AbstractAuthor's information

    This article draws on Hans Kelsen’s theory of democracy to argue that, contrary to conventional wisdom, there is nothing fundamentally wrong with the democratic legitimacy of either the European Union (EU) or the European Court of Justice (ECJ). The legitimacy problems from which the EU in general and the ECJ in particular are alleged to suffer seem to result mainly from our rigid adherence to the outdated conception of democracy as popular self-legislation. Because we tend to approach the Union’s political and judicial practice from the perspective of this democracy conception, we are not able to observe what is blindingly obvious, that is, the viability and persistence of both this mega-leviathan and the highest court thereof. It is, therefore, imperative that we modernize and adjust our conception of democracy in order to comprehend the new reality to which these bodies have given rise, rather than to call for ‘reforms’ in a futile attempt to bring this reality into accordance with our ancient preconceptions about what democratic governance ought to be. Kelsen is the democratic theorist whose work has enabled us to venture into that direction.


Quoc Loc Hong
Quoc Loc Hong was a FWO Postdoctoral Fellow from 2007 to 2009 at the University of Antwerp. He is currently an independent researcher.
Article

Les élections législatives du 8 novembre 1981

Analyse des résultats

Journal Res Publica, Issue 1 1982
Authors William Fraeys
Abstract

    The general elections of november 1981 in Belgium showed the second most important change in party-vote since 1945. The non-voting is in the three regions slightly superior to the nonvoting at the 1978 elections, but considerably lower than the non-voting for the European Parliament. In contrast with the results of the public opinion polls, the number of blank and spoilt ballot papers shows a rather sharp decline compared with 1978. For the country taken as a whole, these votes totalled about 5 % less than at the time of the European election. The election trends are very much alike in the three regions of the country: a considerable loss by the Christian Democrats, a quasi status quo for the Socialists, a gain by the Liberals and the UDRT-RAD (Democratic Union for Respect of Work), a Communist loss, a very heavy defeat by the French-speaking nationalist parties contrasting with the ahead movement of the Volksunie (Flemish federalists), this being the only «reversed» trend according to the regions, and at last a significant breakthrough of the «green» lists. The parties of the outgoing coalition have been «punished» by the electorate; together they lost 10.11 % of the valid votes. The loss, however, has been suffered almost entirely by the Christian Democrats.


William Fraeys
Article

Les élections européennes de 1979

Analyse des résultats pour la Belgique

Journal Res Publica, Issue 3 1979
Authors William Fraeys
Abstract

    This article analyses the results recorded in Belgium in connection with the election of 10 june 1979 for the European Parliament. A first fact that should be brought under the attention is undoubtedly the decrease in the turnout at the poll, in spite of the legal obligation to vote, as well as the considerable augmentation of blank and void votes. One in five of the Belgian electors did not express his opinion. The results in the Walloon part of the country reveal a setback of the Left, votes having swung especially from the Socialists, although also from the Christian Democrat Party to the Enveronmentalists, the «Rassemblement Wallon» (Walloon Federalists) and in a less degree to the Liberals. In the Flemish cantons, the great winner was the Flemish Christian Democrat Party (CVP), partly thanks to Mr. Tindemans' personal success. The Socialists succeeded in interrupting the downward move, started several years before, but the Liberals receded as did the nationalist parties (Volksunie, Vlaamse Volkspartij). The Environmentalists are progressing. In Brussels, the Liberals are strongly moving forward as are the Flemish Christian Democrats, whereas the French-speaking Socialists (PS), Christian Democrats (PSC), Regionalists (FDF) and the Flemish Nationalist parties are losing ground. The election which did not stir much interest was marked by a «personalisation» of the votes, a phenomenon most spectacularly illustrated by Mr. Tindemans who obtained more than one million preference votes, viz. nearly 30 % of the valid votes in the Dutch-language constituency.


William Fraeys
Article

Les élections législatives du 17 décembre 1978

Analyse des résultats

Journal Res Publica, Issue 2 1979
Authors William Fraeys
Abstract

    This article is a summary of the results of the parliamentary election held on 17th December 1978. The balloting came in the wake of an early dissolution of the legislative bodies («Chamber» and «Senate») elected in 1977. The main feature of the election is that voters largely confirmed the 1977 voting patterns and that the new bodies wilt be very similar to the former ones. The only really significant trend is the falling off of Volksunie (Flemish federalists) and the ahead movement of Flemish liberals (PVV). A second characteristic, together with an increased number of blank or spoilt ballot papers, is a slight breakthrough of new or minor lists of candidates, e.g. the Democratiec Union for Respect of Work, an anti-tax party, and a number of «green» lists. It came rather as a surprise that the Flemish Christian Democrats (CVP) lost some ground, as public opinion polls and political observers had forecast a gain. It seems that the Flemish liberal promises for tax cuts attracted CVP voters to some extent, resulting in that party not fully cashing in on the Volksunie drop. In the Walloon region the balloting was characterized by a Socialist loss, and a gain by Christian Democrats (PSC). The Chambers elected in 1978 are constituent bodies. For the time being it cannot be said whether they will be in a position to achieve pacification between the Flemish and French-speaking communities andto put an end to the long controversy concerning devolution which has been prevailing on the Belgian political scene for many years.


William Fraeys
Article

De Europese programma's van Fianna Fail, FDF-RW en Volksunie

Een gemene noemer voor Ierse nationalisten en Belgische federalisten?

Journal Res Publica, Issue 1 1979
Authors Joan Hart and Bruno De Witte
Abstract

    The article compares the attitude of the Irish Fianna Fait, the Flemish Volksunie, and the coalition of the Rassemblement Wallon and the Francophone Brussels' PDF, towards Europe and their programmes for the European elections. These parties do not define themselves on a socio-economic or religious basis, as most of the other European political parties do, but give ideological priority to the ethnic or national factor. Does this imply a common and distinctive attitude to European integration? The answer must be no; they disagree not only on sectoral policies, but their fundamental outlook is different. FDF-RW and VU, on the one hand, though bitter opponents on the national level, both favour a federal Europe, in order to promote autonomy for their respective regions. Fianna Fait on the other hand, white recognizing the political and economic importance of Europe, is sceptical on the institutional level. Fianna Faits approach is essentially pragmatic, being a government party identifying its interests with the national interest, whereas the Belgian federalists cannot identify themselves with the existing Belgian state. Therefore it is unlikely at present that Fianna Fait wilt leave its European allies - the Gaullists - to join a hypothetic regionalist grouping in European Parliament.


Joan Hart

Bruno De Witte
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