The threat of climate change demands far-reaching, systematic changes to the global economy—and similar changes to how governments around the world set environmental policies. In recent years, many environmental policymakers have developed plans to “decarbonize” the economy. These plans provide detailed, sector-specific plans for how the latest scientific consensus on climate change can be incorporated into the policymaking process and for how the Sustainable Development Goals can be achieved. But articulating the policies is one thing—actually setting them is another. Frequently absent from this conversation is the role that American constitutions can play in averting climate change. Other countries, however, do not have this problem. Around the world, many countries’ supreme courts have issued bold and far-reaching decisions in the climate change arena. Many of these decisions have forced governments to comply with their commitments under the Paris Agreement; others have recognized environmental “rights,” possessed either by individual people or even by nature itself. And many of these decisions have been predicated on supportive language in national constitution. In the United States, however, no court has issued a similarly sweeping ruling—and few constitutions contain provisions that are meant to systematically address climate change or other environmental crises. Accordingly, in this Article, I argue that state constitutions could serve a vital role in decarbonizing the American economy. I conduct a comprehensive survey of provisions in nineteenth-century state constitutions that affected the environment—through resource allocation, land management, water rights, eminent domain, and so on—and argue that many of the principles underlying these provisions could be adapted to contemporary constitutional drafting. I also critically survey the handful of environmental “bills of rights” in state constitutions and explore why these provisions have been largely ineffective so far. Ultimately, I argue for the ratification of state constitutional amendments that set environmental policies to decarbonize the American economy—and outline what these amendments might look like in practice.
{"title":"Decarbonizing Constitutions","authors":"Quinn Yeargain","doi":"10.2139/ssrn.3901929","DOIUrl":"https://doi.org/10.2139/ssrn.3901929","url":null,"abstract":"The threat of climate change demands far-reaching, systematic changes to the global economy—and similar changes to how governments around the world set environmental policies. In recent years, many environmental policymakers have developed plans to “decarbonize” the economy. These plans provide detailed, sector-specific plans for how the latest scientific consensus on climate change can be incorporated into the policymaking process and for how the Sustainable Development Goals can be achieved. But articulating the policies is one thing—actually setting them is another. Frequently absent from this conversation is the role that American constitutions can play in averting climate change. Other countries, however, do not have this problem. Around the world, many countries’ supreme courts have issued bold and far-reaching decisions in the climate change arena. Many of these decisions have forced governments to comply with their commitments under the Paris Agreement; others have recognized environmental “rights,” possessed either by individual people or even by nature itself. And many of these decisions have been predicated on supportive language in national constitution. In the United States, however, no court has issued a similarly sweeping ruling—and few constitutions contain provisions that are meant to systematically address climate change or other environmental crises. Accordingly, in this Article, I argue that state constitutions could serve a vital role in decarbonizing the American economy. I conduct a comprehensive survey of provisions in nineteenth-century state constitutions that affected the environment—through resource allocation, land management, water rights, eminent domain, and so on—and argue that many of the principles underlying these provisions could be adapted to contemporary constitutional drafting. I also critically survey the handful of environmental “bills of rights” in state constitutions and explore why these provisions have been largely ineffective so far. Ultimately, I argue for the ratification of state constitutional amendments that set environmental policies to decarbonize the American economy—and outline what these amendments might look like in practice.","PeriodicalId":169154,"journal":{"name":"LSN: Constitutional Creation (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126858775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-07DOI: 10.18601/01229893.n48.06
Silvina Ribotta
Spanish Abstract: Existe una relevante tensión conceptual y fáctica entre la autonomía que desarrollan los seres humanos y las condiciones materiales de los orígenes sociales que han disfrutado. Para entenderla es necesario analizar la condicionalidad que se oculta en la relación entre desigualdad y autonomía desde los conceptos de pobreza, desigualdades económicas y necesidades básicas, explicitando qué y cuáles son las condiciones materiales de los orígenes sociales. Desde las necesidades básicas, que deberían ser relevantes en la fundamentación de derechos y que algunas ya se encuentran incorporadas a las obligaciones jurídicas de los Estados de Derecho modernos a través de los derechos sociales y su efectividad, es posible objetivar las adecuadas condiciones materiales de los orígenes sociales para garantizar niveles de desarrollo de la autonomía compatibles con la libertad real de las personas. Resulta importante, por ende, analizar la compleja relación (y las contradicciones) que la desigualdad, especialmente la desigualdad económica, mantiene con el disfrute de la autonomía de las personas, impidiendo o permitiendo que éstas puedan resultar realmente autónomas y realmente libres, desnudando el jaque (que peligra en mate) en que coloca la desigualdad a la autonomía y a la misma libertad.
English Abstract: There are relevant conceptual and factual tension between the autonomy that human beings really develop and the material conditions of the social origins that they have enjoyed. To understand this complexity, it is necessary to begin by analyzing the conditionality in the relationship between inequality and autonomy from the concept of poverty, economic inequalities and basic needs, explaining what the material conditions of social origins are. The theory of basic needs allows objectifying the concrete appropriate material conditions of the social origins that guarantee levels of development of autonomy compatible with the real freedom of people. Basic needs should be considered somehow in the process of the justifications of rights especially when some of those needs are included in certain legal obligations in our modern States through social rights and their effectiveness. It is therefore relevant to analyze the complex relationship (and the contradictions) that inequality, especially economic inequality, establishes with the enjoyment of people’s autonomy, preventing or allowing them to be really autonomous and, therefore, really free. In short, showing the check (and maybe the checkmate) in which inequality puts autonomy and, therefore, freedom itself.
西班牙语摘要:在人类发展的自主性和他们所享有的社会起源的物质条件之间存在着一种相关的概念和事实张力。为了理解它，有必要分析隐藏在不平等和自治之间关系中的条件，从贫穷、经济不平等和基本需求的概念，解释什么和什么是社会起源的物质条件。应该从基本需求,相关权利基础和一些已经出现的现代法治国家法律义务通过社会权利和其效力,可以客观地掌握适当的物质条件的起源自治的社会发展程度,以确保符合人的真正的自由。是最重要的,因此,分析(矛盾)的复杂关系的不平等,特别是经济不平等、维护享有自主权,阻止或允许人们自由和自治可能真的真的要危险在剥离了她检查(再)放置的不相同自治和自由。在人类实际发展的自主能力和他们所享受的社会起源的物质条件之间存在着相关的概念和事实张力。要理解这种复杂性，首先必须从贫穷、经济不平等和基本需要的概念分析不平等与自主之间关系中的条件，解释社会起源的物质条件是什么。基本需要理论使社会起源的具体适当物质条件得以客观化，从而保证自治发展水平与人民的真正自由相一致。在为权利辩护的过程中，应考虑到基本需要，特别是当一些基本需要通过社会权利及其效力被纳入我们现代国家的某些法律义务时。因此，分析不平等，特别是经济不平等的复杂关系(和矛盾)是相关的，这种不平等是由于人们对自治的享受而产生的，防止或允许他们真正自治，从而真正自由。In short,显示the check and maybe the checkmate) In which inequality puts autonomy和,因此,自由本身。
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This essay, written for From morality to law and back again: Liber amicorum for John Gardner (Michelle Dempsey and Francois Tanguay-Renaud, eds., Oxford University Press), is in conversation with the late John Gardner's essay "Can there be a written constitution?". It interrogates Gardner's strategy of answering his title question by reference to HLA Hart's secondary rules and suggests that, by doing so, certain aspects of a constitution are closed off from consideration or obscured from view. Among those is whether a constitution constitutes a legal system or, more broadly, a state or government; whether Hart's secondary rules can account for the executive function of government; and whether rights requiring legislative action can be explained in the frame of secondary rules. The essay concludes by suggesting that, without holding in view a more complete picture of a constitution, Gardner's title question may ask the wrong question in a manner analogous to one who asks if the constitution of a fruit fly can be written.
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Amid much recent American work on the problem of informal constitutional change, this article stakes out a distinctive position. I argue that theories of constitutional change must address more directly the question of the relationship between the "small c" and "big C" Constitution and treat seriously the possibility of conflict between them. I stress the role the text of the Constitution and structural doctrines of federalism and separation of powers play in this relationship and thus in constitutional change, both formal and informal. I therefore counsel against theories that rely solely on a practice-based approach or analogies between "small c" constitutional developments and British or Commonwealth traditions of the "unwritten" constitution and constitutional "conventions". In particular, I critique theories developed by Karl Llewellyn, Ernest Young, Adrian Vermeule, and David Strauss. The alternative I advocate is to approach constitutional change from a historicist perspective that uses work from American political development scholarship to focus attention on how state building and the creation of new institutional capacities are linked to constitutional change. This approach will allow us to make progress by highlighting that there can be multiple constitutional orders in a given historical era, thus accounting for the conflictual nature of contemporary constitutional development.
{"title":"Understanding Informal Constitutional Change","authors":"S. Griffin","doi":"10.2139/ssrn.2724580","DOIUrl":"https://doi.org/10.2139/ssrn.2724580","url":null,"abstract":"Amid much recent American work on the problem of informal constitutional change, this article stakes out a distinctive position. I argue that theories of constitutional change must address more directly the question of the relationship between the \"small c\" and \"big C\" Constitution and treat seriously the possibility of conflict between them. I stress the role the text of the Constitution and structural doctrines of federalism and separation of powers play in this relationship and thus in constitutional change, both formal and informal. I therefore counsel against theories that rely solely on a practice-based approach or analogies between \"small c\" constitutional developments and British or Commonwealth traditions of the \"unwritten\" constitution and constitutional \"conventions\". In particular, I critique theories developed by Karl Llewellyn, Ernest Young, Adrian Vermeule, and David Strauss. The alternative I advocate is to approach constitutional change from a historicist perspective that uses work from American political development scholarship to focus attention on how state building and the creation of new institutional capacities are linked to constitutional change. This approach will allow us to make progress by highlighting that there can be multiple constitutional orders in a given historical era, thus accounting for the conflictual nature of contemporary constitutional development.","PeriodicalId":169154,"journal":{"name":"LSN: Constitutional Creation (Topic)","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121471656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When scholars traditionally debated issues of constitutional law or constitutional interpretation, they did so on the basic assumption that our written Constitution represents the nation’s exclusive highest law, that it can be formally altered only through a complex supermajoritarian process, and that the prophylactically insulated and unaccountable judiciary retains the final authority to interpret the document. For generations, it was thought unnecessary to develop a theoretical justification for this root assumption. But over the last few decades, this foundational assumption has come under scholarly attack. This has led us to ask: how does one define the core of American constitutionalism? The traditional understanding of American constitutionalism consists of two elements: the underlying principle of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea — countermajoritarian constraint set against majoritarian power — which reveals itself through reverse engineering from the structural Constitution. In this Article, we identify two sets of “modernist” scholars who believe themselves — wrongly — to be entirely disconnected from one another because they each attack a different aspect of the traditional understanding of American constitutionalism. “Constitutional realists” do not purport to dispute the animating purpose of American constitutional governance, but claim that the complete American Constitution is represented by more than just the entrenched written document. Similarly, “departmentalists” and “popular constitutionalists” do not disclaim the animating purpose of American constitutionalism, but claim that the written Constitution forbids judicial supremacy, or at least that it is neither constitutionally required nor normatively desirable. Neither group acknowledges the existence of the other, presumably because they assume they are attacking entirely different aspects of our constitutional structure. But by exposing the fundamental flaws of these two theories and how they irremediably contradict the underlying principle and apparatus, this Article demonstrates the fundamental link between these modernists because the two activating devices they challenge are both essential components of American constitutionalism. As such, modernists who challenge them are functionally challenging the entire American constitutional tradition at its core. We therefore develop a more complete, revamped theoretical explanation of traditional constitutionalism that incorporates this understanding. What we label “premodern constitutionalism” asserts that the core of American constitutionalism has a tripartite theoretical foundation. It is the principle of skeptical optimism; the political apparatus of countermajoritarian constraint of majoritarian power structures which implements the principle; and the two key structural elements ne
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The United States Constitution is one of the most important documents in the history because it has set an example of a successful constitutional democracy for the world, and the freedom, peace, and prosperity of American people over last 227 years have been built upon the constitution. Despite its importance, this paper shows that the US constitution has many fundamental design flaws. In an earlier paper, we have proposed that the most stable political structure for any nation is the equilibrium political structure characterized by a set of 16 democratic principles. The natural following up research is to compare the US constitution with the theoretical equilibrium political structure. The results of the comparison are very fascinating and summarized in this paper. The conclusion is that although the US constitution is very well-designed overall, there are many fundamental design flaws, and many problems facing this country right now are direct results of the design flaws of US constitution. This paper has one profound implication for the future generations: the US government will probably be the first government in the world history that will last forever. The reason is simply because the current US constitution is very close to the equilibrium political structure, and all equilibrium structures in physics, chemistry, and biology can last forever. The United States constitution will be almost perfect if we can correct 22 fundamental design flaws outlined in this paper.
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This paper considers why it is that drafters of national constitutions incorporate international law, a phenomenon that is of growing importance. It argues that designers do so when they need to make credible commitments, and that international law has some unique features that render it attractive as a commitment device. The paper then considers an alternative hypothesis, namely that countries adopt such provisions as part of a process of diffusion, following other country's choices. The paper develops an empirical test of these hypotheses, and finds support for both, suggesting that commitment and diffusion operate in a complementary fashion.
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