The Constitutional Balance

In The Constitutional Balance Sir John Laws has left a vivid and timely commentary on one of the most pressing issues in the legal world today. The debate continues whether or not judges venture too far into issues of Government policy, and whether or not there are any limits on the power of the executive and the legislature to propose and enact legislation that unduly restricts fundamental freedoms in a democratic society subject to the rule of law. Sir John Laws examines the relationship between constitutional fundamentals and values. He finds basic ideals of reason, fairness and the presumption of liberty in the common law, and recognises that a democratically accountable executive and legislature must be able to make policy and enact and implement legislation to pursue social goals. The courts then interpret the laws. As Sir John puts it – “The meeting of Parliament and the common law, in the crucible of statutory interpretation, is close to the core of [the constitutional balance]”. These fundamental values can compete with each other, giving rise to tensions within and between key state institutions, in particular the executive and the judiciary. A 'constitutional balance' between them must be found if the constitution is to function properly, each institution is to understand the proper extent and limits of its authority, and the rule of law is to be maintained. Sir John draws on his life-long experience as a barrister, judge and academic, and on case-law and learning, to explain in vibrant and engaging terms how such a 'constitutional balance' might be achieved.

Moon argues that recognition of the social dynamic of communication is critical to understanding the potential value and harm of language and to addressing questions about the scope and limits on one's rights to freedom of expression.

How partisan balance between the U.S. presidency and Congress is essential to successful government With three independent branches, a legislature divided into two houses, and many diverse constituencies, it is remarkable that the federal government does not collapse in permanent deadlock. Yet, this system of government has functioned for well over two centuries, even through such heated partisan conflicts as the national health-care showdown and Supreme Court nominations. In Partisan Balance, noted political scholar David Mayhew examines the unique electoral foundations of the presidency, Senate, and House of Representatives in order to provide a fresh understanding for the government's success and longstanding vitality. Focusing on the period after World War II, and the fate of legislative proposals offered by presidents from Harry Truman to George W. Bush, Mayhew reveals that the presidency, Senate, and House rest on surprisingly similar electoral bases, with little difference in their partisan textures as indexed by the presidential popular vote cast in the various constituencies. Both congressional chambers have tilted a bit Republican, and while White House legislative initiatives have fared accordingly, Mayhew shows that presidents have done relatively well in getting their major proposals enacted. Over the long haul, the Senate has not proven much more of a stumbling block than the House. Arguing that the system has developed a self-correcting impulse that leads each branch to pull back when it deviates too much from other branches, Mayhew contends that majoritarianism largely characterizes the American system. The wishes of the majority tend to nudge institutions back toward the median voter, as in the instances of legislative districting, House procedural reforms, and term limits for presidents and legislators.

There is a great difficulty in the way of a writer who attempts to sketch a living Constitution-a Constitution that is in actual work and power. The difficulty is that the object is in constant change. An historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. But a contemporary writer who tries to paint what is before him is puzzled and a perplexed: what he sees is changing daily. He must paint it as it stood at some one time, or else he will be putting side by side in his representations things which never were contemporaneous in reality.

The book focuses on Robert Alexy's theory of constitutional rights. Alexy systematically presented the theory in his seminal book Theorie der Grundrechte (1985; Engl. translation Theory of Constitutional Rights, 2002) and continued to develop it in numerous subsequent articles. Arguably still the most influential theory of constitutional rights, it has found widespread academic support, as well as recognition in several constitutional jurisdictions. On the other hand, it has also been the object of considerable criticism. The aim of this book is to outline the central aspects of Alexy's theory as he sees them, and to further develop the principles of constitutional, fundamental, and human rights by applying a constructive criticism of his theory.

Sixteen major Supreme Court cases on such topics as abortion and school prayer are discussed.