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A major legal scholar presents an empowering reassessment of our nation’s most essential document In this surprising and highly unconventional work, Harvard law professor Mark Tushnet poses a seemingly simple question that yields a thoroughly unexpected answer. The Constitution matters, he argues, not because it structures our government but because it structures our politics. He maintains that politicians and political parties—not Supreme Court decisions—are the true engines of constitutional change in our system. This message will empower all citizens who use direct political action to define and protect our rights and liberties as Americans. Unlike legal scholars who consider the Constitution only as a blueprint for American democracy, Tushnet focuses on the ways it serves as a framework for political debate. Each branch of government draws substantive inspiration and procedural structure from the Constitution but can effect change only when there is the political will to carry it out. Tushnet’s political understanding of the Constitution therefore does not demand that citizens pore over the specifics of each Supreme Court decision in order to improve our nation. Instead, by providing key facts about Congress, the president, and the nature of the current constitutional regime, his book reveals not only why the Constitution matters to each of us but also, and perhaps more important, how it matters.
Does constitutionalizing rights improve respect for those rights in practice? Drawing on statistical analyses, survey experiments, and case studies from around the world, this book argues that enforcing constitutional rights is not easy, but that some rights are harder to repress than others. First, enshrining rights in constitutions does not automatically ensure that those rights will be respected. For rights to matter, rights violations need to be politically costly. But this is difficult to accomplish for unconnected groups of citizens. Second, some rights are easier to enforce than others, especially those with natural constituencies that can mobilize for their enforcement. This is the case for rights that are practiced by and within organizations, such as the rights to religious freedom, to unionize, and to form political parties. Because religious groups, trade unions and parties are highly organized, they are well-equipped to use the constitution to resist rights violations. As a result, these rights are systematically associated with better practices. By contrast, rights that are practiced on an individual basis, such as free speech or the prohibition of torture, often lack natural constituencies to enforce them, which makes it easier for governments to violate these rights. Third, even highly organized groups armed with the constitution may not be able to stop governments dedicated to rights-repression. When constitutional rights are enforced by dedicated organizations, they are thus best understood as speed bumps that slow down attempts at repression. An important contribution to comparative constitutional law, this book provides a comprehensive picture of the spread of constitutional rights, and their enforcement, around the world.
As countries in the twentieth and twenty-first centuries change from colonialist to independent rule, or from a socialist to a democratic society, the need for a written constitution becomes apparent. Countries in the former Soviet Union, Africa, or nations once part of the British Empire face social, economic, and humanitarian problems as they experiment with democratic rule. Such issues as clearly defining where sovereignty lies, how much power is given to the people, and what rights are possessed by a nation's citizenry are new to these countries. While a constitution, being a man-made document, is subject to interpretation and does not always delineate in a lucid framework its parameters for future generations, it is clear that constitutions do matter. This volume, compiled under the direction of the City University of Stockholm, is an important study on the significance of constitutions and constitutional law in a democratic society. A number of scholars in law, political science, and economics have contributed to this volume. They include: James Buchanan, Aleksander Peczenik, Mats Lundstrom, Joakim Nergelius, Sverker Hard, Niclas Berggren, Peter Kurrild-Klitgaard, Wolfgang Kasper, and Erik Moberg. All add to the understanding of the intertwining roles of politics and the social sciences in a modern democratic state. They explore why a constitution is essential; the relationship between a constitution and a rational political system; the democratic principle of majority rule; why constitutional constraints are needed in a democratic state; recent constitutional reforms in the United Kingdom; the electoral system and its centrality in a democracy; evolution in constitutional change; competition within a federal structure; and the connection between politics and economics. Why Constitutions Matter is a fascinating and timely study of constitutionalism, and will be of interest to students of politics, law, economics, and sociology.
When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties. The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court. But these explanations tell just part of the story. The book corrects this omission by looking at each issue-and some others as well-through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions. If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also offers several ideas for reform.
Why Law Matters argues that public institutions and legal procedures are valuable and matter as such, irrespective of their instrumental value. Examining the value of rights, public institutions, and constitutional review, the book criticises instrumentalist approaches in political theory, claiming they fail to account for their enduring appeal.
This volume explores the form and function of constitutions in countries without the fully articulated institutions of limited government.
"A must-read for this era.”—Jake Tapper, CNN Anchor and Chief Washington Correspondent An insightful, urgent, and perennially relevant handbook that lays out in common sense language how the United States Constitution works, and how its protections are eroding before our eyes—essential reading for anyone who wants to understand and parse the constantly breaking news about the backbone of American government. The Constitution is the most significant document in America. But do you fully understand what this valuable document means to you? In How to Read the Constitution--and Why, legal expert and educator Kimberly Wehle spells out in clear, simple, and common sense terms what is in the Constitution, and most importantly, what it means. In compelling terms and including text from the United States Constitution, she describes how the Constitution’s protections are eroding—not only in express terms but by virtue of the many legal and social norms that no longer shore up its legitimacy—and why every American needs to heed to this “red flag” moment in our democracy. This invaluable—and timely—resource includes the Constitution in its entirety and covers nearly every significant aspect of the text, from the powers of the President and how the three branches of government are designed to hold each other accountable, to what it means to have individual rights—including free speech, the right to bear arms, the right to be free from unreasonable searches and seizures, and the right to an abortion. Finally, the book explains why it has never been more important than now for all Americans to know how our Constitution works—and why, if we don’t step in to protect it now, we could lose its protections forever. How to Read the Constitution--and Why is essential reading for anyone who cares about maintaining an accountable government and the individual freedoms that the Constitution enshrines for everyone in America—regardless of political party.
A work of extraordinary range and striking originality, The Gun, the Ship, and the Pen traces the global history of written constitutions from the 1750s to the twentieth century, modifying accepted narratives and uncovering the close connections between the making of constitutions and the making of war. In the process, Linda Colley both reappraises famous constitutions and recovers those that have been marginalized but were central to the rise of a modern world. She brings to the fore neglected sites, such as Corsica, with its pioneering constitution of 1755, and tiny Pitcairn Island in the Pacific, the first place on the globe permanently to enfranchise women. She highlights the role of unexpected players, such as Catherine the Great of Russia, who was experimenting with constitutional techniques with her enlightened Nakaz decades before the Founding Fathers framed the American constitution. Written constitutions are usually examined in relation to individual states, but Colley focuses on how they crossed boundaries, spreading into six continents by 1918 and aiding the rise of empires as well as nations. She also illumines their place not simply in law and politics but also in wider cultural histories, and their intimate connections with print, literary creativity, and the rise of the novel. Colley shows how—while advancing epic revolutions and enfranchising white males—constitutions frequently served over the long nineteenth century to marginalize indigenous people, exclude women and people of color, and expropriate land. Simultaneously, though, she investigates how these devices were adapted by peoples and activists outside the West seeking to resist European and American power. She describes how Tunisia generated the first modern Islamic constitution in 1861, quickly suppressed, but an influence still on the Arab Spring; how Africanus Horton of Sierra Leone—inspired by the American Civil War—devised plans for self-governing nations in West Africa; and how Japan’s Meiji constitution of 1889 came to compete with Western constitutionalism as a model for Indian, Chinese, and Ottoman nationalists and reformers. Vividly written and handsomely illustrated, The Gun, the Ship, and the Pen is an absorbing work that—with its pageant of formative wars, powerful leaders, visionary lawmakers and committed rebels—retells the story of constitutional government and the evolution of ideas of what it means to be modern.
Using two tours de force of modern physics as case studies - proofs that ordinary matter is stable, and solutions to the Ising model of a phase transition (how a liquid freezes to a solid, for instance) - Krieger uncovers the philosophical foundations on which the mathematical models of these phenomena are built. In so doing, he gives the reader a better feel not just for how physicists believe the natural world is structured, but also for how they have arrived at those conclusions.
The world has seen many new constitutions promising social rights and adopting innovative representative institutions. This book presents examples from the United States, Europe, Africa, and Asia that show these constitutions face many challenges, especially the rise of authoritarian regimes that endanger the rule of law.