Pas de résumé / No abstract

The Thirteenth and Fourteenth Amendments to the United States Constitution, which were ratified in the aftermath of the Civil War, abolished slavery, established national citizenship and made equality before the law a constitutional requirement. These national constitutional amendments brought revolutionary change to America's foundational law, but it was up to state and local legal actors to incorporate this change into the law that governed the everyday lives of Americans. The literature of Reconstruction legal history tends to place federal law, federal courts and federal legal actors at the center of the story. But in the nineteenth century, the federal judicial system was limited in its institutional capacity and its jurisdictional authority. State courts, on the other hand, were ubiquitous and possessed of expansive jurisdictional authority to hear cases arising under both state and federal law. Before the end of the nineteenth century, most Americans could spend their entire lives without encountering the federal legal system. On the other hand, county courts and the common law legal culture in which they existed were an integral part of their daily lives. This dissertation focuses on the state of North Carolina, examining how the state's legal actors articulated the meaning of freedom and incorporated it into their common law legal culture during Reconstruction. Engaging with recent literature that reconsiders the importance of the common as an ideology and mode of governance, this dissertation argues that the common law conceptualization of rights stood in contrast to the abstract, individual rights embodied in the U.S. Constitution. Common law rights were contextual, relational, and hierarchical. Further, common law principles centered around creating and maintaining good social order rather than protecting individual rights. Because the common law dominated nineteenth century legal culture, North Carolina legal actors could not simply impose the principles of the newly amended U.S. Constitution onto the existing legal order. Rather, to ensure their lasting legitimacy they had to integrate those principles into the existing common law legal culture. The process of integration began even before North Carolina ratified the Thirteenth Amendment. At the end of the war, Union army General John M. Schofield oversaw the administration of justice and the implementation of freedom in North Carolina through military commission proceedings over civilians. Even in these military tribunals the common law provided a common language and ideology through which northern military officials, North Carolinian citizens and North Carolina lawyers could contest the precise meaning of freedom. Once civilian courts resumed their authority, North Carolinians continued throughout Reconstruction to refine the meaning of freedom and to incorporate the new constitutional values in the language of the common law. By focusing on the local implementation of constitutional change, this dissertation sheds light on how Americans experienced emancipation and freedom in their everyday lives. However, uncovering the common law context in which it developed aids our understanding of nineteenth century constitutional doctrine as well.

Can a constitution commit suicide? How should a liberal democratic state respond when social movements threaten war with one another and against the state itself? How should liberal democrats respond when extremist parties are strong enough to cooperate in parliament and obstruct essential legislation? Can an illiberal antidemocratic party legitimately obtain power through elections and then kick the ladder down by legally amending democracy and liberalism out of the constitution entirely? Beginning in 1929, theoretical questions like these suddenly became both practically and existentially relevant for Weimar Germany. The share of the vote Nazis and Communists received in elections swelled until, combined, they were the majority. Neither movement accepted the legitimacy of liberal democracy and both were explicit that their only goal in running for seats in parliament was to gain a strong enough majority to amend the Weimar Constitution out of existence. Until then, they cooperated across the aisle, so to speak, to constitute negative majorities and prevent the SPD, Zentrum, and other parties from being able to pass legislation to respond to the economic, social, and political crises Weimar faced. By 1932, the Nazis held a plurality. In January 1933, exhausted with alternatives, Hindenburg appointed Hitler Chancellor. This dissertation extrapolates Carl Schmitt's state theory and looks at how it was conceived in response to Weimar's legitimation crisis. It shows how Schmitt looks back to the tradition of state theory to address this crisis. In particular, it shows how he models his solution on Thomas Hobbes, whose Leviathan was also a response to civil war and the breakdown of political order. This dissertation argues Schmitt updates Hobbes' state theory to respond to the unique problems of the 20th century, especially modern mass democracy. Modern mass democracy was the product of universal suffrage, mass media, and advances in psychology. Disingenuous social movements exploited the media and whipped up an emotionally charged base, obtaining for themselves a veneer of democratic legitimacy and the means to parliament. Once in parliament, they exacerbated Weimar's crises and struggled against each another to advance their particular goals. Schmitt saw these conflicts as the 20th century equivalent of the Confessional Civil Wars and he saw himself as the 20th century Hobbes. He theorized ways to neutralize those conflicts and restore the state's sovereign authority. But, besides that, Schmitt thought these issues begged the basic question of constitutionalism: are there any objective limits to a goal "the people" want, even if 99 percent of citizens support that goal? Can "the people" legitimately be bound to the mast? Can democracy be tyrannical? Schmitt's peers, such as Hans Kelsen and Richard Thoma, answered in the negative and argued that there was no basis to deny a democratic will that had formed through proper procedures. Schmitt disagreed. He argued the constitution imposed hard limits on democracy. Through this answer, this dissertation argues Schmitt's state theory anticipated what is today known as militant democracy. Militant democracy is a type of liberal democratic constitution that guards against certain forms of popular sovereignty and prevents constitutional suicide. Its institutional mechanisms include the entrenchment of core constitutional principles, such as basic rights, and political bans on certain illiberal and antidemocratic parties. Although one finds militant democracy embedded in constitutions around the world today, it has been undertheorized. Because Schmitt's theory of militant democracy rests on his substantive state theory, this dissertation concludes he offers us a foundation for developing a normative theory of militant democracy - something invaluable for making sense of its legitimacy and its limits today.

Abstract not available

Thesis (Ph. D.)--University of Chicago, Dept. of History, August 2001. / Includes bibliographical references. Also available on the Internet.

Seventy-five years ago the provincial governments of Manitoba, Saskatchewan, and Alberta signed a series of Natural Resources Transfer Agreements (NRTAs) with the federal government. These agreements provided the answer to a contentious debate known as the 'Natural Resources Question'. Before the NRTAs, the three prairie provinces did not have control over their public domain lands and did not share equal constitutional status with the other Canadian provinces. In the early 1920s, Prime Minister King recognized the validity of the provincial arguments for constitutional equality and no longer wanted the federal government to be responsible for the administration of provincial natural resources. By this time, the policy ambitions which had previously justified the retention of the natural resources had been fulfilled. Thus, the constitutional rights arguments presented by the prairie provinces found a receptive audience when the control of the lands and resources were no longer a federal priority.

This thesis is part of a more extended study of the life of John Neilson which I hope to complete later for the degree of Ph.D. It is restricted to the period 1818-182 8 and deals with Neilson1s activities in the Assembly of Lower Canada and his representations in England in 1822, on the matter of the Union Bill, and in 1828 before the Canada Committee. Its scope has been further limited to those issues arising out of the constitution, organization and functioning of the government. This involves the question of administration and the struggle between Assembly and Executive for its control, as well as relations with the mother country and with Upper Canada. The closely related fields of law, land settlement and education have not been included. The object has been to bring out Neilson1s views on these questions in the belief that they contribute to an understanding of the period. / fr

"27 October 1998" / Thesis (PhD)--Macquarie University, School of Law, 1999. / Bibliography: p. 509-550. / Thesis -- Appendices. / 'The Crown' has been described as a 'term of art' in constitutional law. This is more than misleading, obscuring the pivotal legal position of the king, which in modern times has been conveniently ignored by lawyers and politicians alike. -- This work examines the legal processes by which a king is made, tracing those processes from the earliest times to the present day. It concludes that the king is made by the selection and recognition by the people, his taking of the Oath of Governance, and his subsequent anointing. (The religious aspects of the making of the king, though of considerable legal significance, are not examined herein, because of space constraints.) -- The Oath of Governance is conventionally called the 'Coronation Oath'-which terminology, while correctly categorising the Oath by reference to the occasion on which it is usually taken, has led by subliminal implication to an erroneous conclusion by many modern commentators that the Oath is merely ceremonial. -- This work highlights the legal implications of the king's Oath of Governance throughout history, particularly in times of political unrest, and concludes that the Oath legally :- conveys power from the people to the person about to become king (the willingness of the people so to confer the power having been evidenced in their collective recognition of that person); - bestows all the prerogatives of the office of king upon that person; - enshrines the manner in which those prerogatives are to be exercised by the king in his people(s)' governance; and that therefore the Oath of Governance is the foundation of the British Constitution. -- All power and prerogative lie with the king, who as a result of his Oath of Governance is sworn to maintain the peace and protection of his people(s), and the king can not, in conscience or law, either do, or allow, anything that is in opposition to the terms of that Oath. / Mode of access: World Wide Web. / xxvii, 818 p

Zugl.: Köln, Univ., Diss., 2006

Thesis (Ph. D.)--University of Sydney, 2001. / Title from title screen (viewed Apr. 24, 2008). Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy to the Dept. of History, Faculty of Arts. Degree awarded 2001; thesis submitted 2000. Includes bibliography and of tables of cases. Also available in print form.