Thesis--Faculté de droit de Paris. / Includes bibliographical references.

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The thesis approaches the question of distributive justice through an analysis of legal rights, focusing in particular on constitutional rights. In Part I (Chapters 1, 2, 3) conceptual issues of the meaning of rights are considered. The concept of a right is analyzed generally as (1) a claim to something; (2) which is logically correlated with a duty; and (3) which is justified, in the case of constitutional rights, by reference to constitutional grounds. The more specific Hohfeldian analysis of legal rights is then coordinated with the general account. Analyzing rights as justified claims leads to the question of what counts as constitutional justification which is in turn intimately tied to a correct account of judicial review. In Part II (Chapters 4,5) a definitive account of judicial review is attempted. After examining the logical base of legal reasoning and concluding that it is essentially dialectical, the major normative theories of judicial review are considered. In particular natural law, legal realism, reasoned elaboration, and legal positivism are considered and all are rejected in part. An attempt is then made to incorporate significant elements of each in a general theory using the coherence methodology of Ronald Dworkin. Finally the results are applied to a paradigm of the sort of judicial reasoning that seems to capture the elements picked out in the earlier analysis. It is argued that the thesis advanced here explains and justifies the judicial reasoning used in that case (Griswold v. Connecticut).

The thesis surveys and analyses Commonwealth Bills of Rights. It examines the content of these Bills of Rights and considers their origin and political implications. The first chapter reviews the political history of Bills of Rights generally. This is followed by a chapter dealing with the initiation and introduction of Commonwealth Bills of Rights. Particular attention is given to the attitudes and influences of British officials and advisors. The third chapter considers the general forms of Commonwealth Bills of Rights and the ways in which such guarantees are qualified. The next three chapters examine the substance of the particular guarantees and note judicial cases that are of particular interest. In the seventh chapter some of the political implications of these Bills of Rights are considered. The eighth chapter concerns judicial attitudes toward the enforcement of a Bill of Rights. This is followed by concluding remarks.

Thesis advisor: David Hollenbach / Subsidiarity is a principle in Catholic social thought that informs the distribution of authority among levels of the political and social order. First expressly articulated by Pope Pius XI in his 1931 encyclical letter Quadragesimo Anno, the roots of the concept go back further to Pope Leo XIII and to Thomistic social theory. But subsidiarity is frequently subject to the criticism that it is vague and indeterminate and thereby an ineffective guide to politics and public policy. Much of the discussion of subsidiarity proceeds as though the principle were merely one of devolution of authority to the local level. Moreover, the principle is often taken to be a procedural norm, counseling "small is better" regardless of the underlying substantive question to which one is applying the principle of subsidiarity. The thesis of this dissertation is that it is only through an adequate examination of concrete policy issues that subsidiarity's import can be fully measured and appreciated and only by asking what the common good requires in particular instances through the exercise of political prudence that the proper distribution of authority can be determined. The account of subsidiarity advanced in the dissertation is one of "functional pluralism," denoting that subsidiarity focuses upon the multiple ends of differentiated political societies and thereby seeks to determine the goods they pursue and the means that are properly adapted to those ends. The dissertation argues that federalism and localism as informed by the principle of subsidiarity provide a safeguard for fundamental concerns of Catholic social thought, such as human rights and the common good. After examining the concepts of subsidiarity in Catholic social thought and federalism in American constitutional law and considering their relation, the dissertation discusses three areas in which a richer and analytically sharper understanding of the principle of subsidiarity can make an important contribution to policy debates over the role of federalism and localism in law and public policy. The three policy questions addressed in the dissertation are physician-assisted suicide, FDA preemption, and school finance. / Thesis (PhD) — Boston College, 2009. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Theology.

Thesis (Ed.D.)--Boston University / PLEASE NOTE: Boston University Libraries did not receive an Authorization To Manage form for this thesis or dissertation. It is therefore not openly accessible, though it may be available by request. If you are the author or principal advisor of this work and would like to request open access for it, please contact us at open-help@bu.edu. Thank you. / This study explores the constitutionality of religion-based charter schools. The method of analysis used hypothetical charter schools to answer legal questions. The answers are grounded in law using the latest precedent. The background material before examining charters sets forth both the legal and policy contexts of religious charters schools. The legal context includes a detailed analysis of the Establishment Clause of the U.S. Constitution focusing on the most recent Supreme Court cases on that topic. The policy analysis examines the normative and structural dimensions of charter schools, which are then compared with voucher programs. The historical, political and educational contexts of charter programs are also examined. Three hypothetical situations examine a total of eighteen legal questions: Can coreligionists form a charter school? Can morality-based general propositions of good be taught in a charter school? Can a charter school teach values espoused by coreligionists? Can a charter school teach a course in the relationship between religion and morality? Can a charter school have religious criteria for staff? Can a charter school limit a teacher's right to express different worldviews? Can a charter school offer optional prayer? Can a charter school form for the purpose of allowing students' ease of access to religious education? Can a charter school form to provide students, who would otherwise attend parochial schools, with a free, secular public education? Can clergy sit on the board of a charter school? Can a charter school share facilities with a parochial school? Can a religious organization operate a charter school? Can a charter school have religious criteria for admission? To what extent can a religion class be taught in a charter school? Can a charter school require religious instruction? Can a charter school require religious exercises or worship? Can a charter school affiliate with a denomination? Can states exclude religious organizations from operating charter schools? Each question is analyzed from a legal perspective. The study concludes that charter statutes present an opportunity for parents and communities to form charter schools that will accommodate their beliefs; however, the constitution does not allow them to form schools that endorse their beliefs. / 2031-01-01

Thesis advisor: R. Shep Melnick / The United States now has an extensive, publicly controlled, and bureaucratic system of election regulation. Until roughly a century ago, however, elections were viewed as private party contests subject to minimal state regulation. We examine how this changed, considering in particular the role played by the courts, given that for much of the nineteenth century they viewed the parties as private, constitutionally protected associations. We consider how and why the libertarian argument concerning free speech came to prominence in the campaign debate, and find that at first neither the reformers nor the courts at any level viewed this as a fundamental obstacle to--or even an issue to be considered in--the regulation of money in politics. This shift from a private to a public electoral system had a significant impact on American democracy that has not often been examined. To understand these changes, we examine the arguments put forth by advocates of cam-paign finance reform from the nineteenth to the latter part of the twentieth centuries. We focus on how the proponents justified these laws and how state and federal courts responded to these arguments, paying particular attention to court rulings on the constitutionality of these unprecedented statutes in the late nineteenth and early twentieth centuries and to the evolution of their jurisprudence in this regard during the twentieth century. / Thesis (PhD) — Boston College, 2009. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Political Science.

My dissertation focuses on ratification--the submission of a draft constitution to the people for their approval in an up or down vote--and has two central aims. First, it explores the mechanics, current usage, and possible effects of ratification and argues that despite its intuitive nature and ubiquity, it is in need of justification. Ratification is increasingly common and regularly included within the framing recommendations given by consultants, NGOs, transnational institutions, and the like. In addition, the procedure has significant effects: it can influence the behavior of framers, subsequently alter the contents of what they produce, is expensive to implement, and can lead to costly constitutional rejections. Despite this, both practitioners and scholars treat ratification as a given and provide no explanation or justification for its use. I argue that this is a mistake. Second, the primary aim of my dissertation is to ask what justifies the use of ratification, i.e. what reasons constitution-makers might have for implementing the procedure. Drawing from the history of ratification and the empirical and theoretical literature on constitution-making, I explore a series of possible justifications for the procedure, each of which connects to a central topic or theme in democratic theory. First, I ask whether ratification plays a role in a representative process ongoing during constitution-making, and whether the importance of fostering representation justifies its use. Second, I examine whether the need for ratification stems from its function as a moment of constituent power, an instance where the people manifest and exercise their will to make a constitution their own. Third, I explore whether ratification helps legitimize constitutions; this entails articulating a three-part theory of legitimacy corresponding to the concept's legal, moral, and sociological manifestations, and analyzing the role of ratification within this scheme. I test these potential justifications by looking at their theoretical coherence, applicability to cases of constitution-making from the 18th century to the present, and their compatibility with the actual dynamics and mechanisms of the constitution-making process. The results of my analysis are as follows. I argue that the only role ratification might play in a representative process is as an accountability mechanism, but that the possible divergence between how a voter evaluates a draft constitution and the behavior of his or her representative framer makes the procedure unable to take on this role. I find that theories of constituent power only justify ratification if the procedure is the sole moment during constitution-making in which the people take direct action on the constitution. This limits the justification to ratification procedures involving referenda, and requires that voters make a meaningful choice on the proposed constitution, i.e. they must choose whether to accept or reject a constitution on the basis of their understanding of its contents and the likely result of its rejection. However, this standard of meaningful choice, which requires a far greater level of voter informedness than ordinary instances of direct democracy, is unlikely to be met because voters cannot be expected to possess or obtain the sort of highly technical and specialized information such constitutional evaluation requires. Finally, I show that legal legitimacy collapses into sociological legitimacy when it comes to new constitutions and that ratification might produce sociological and moral legitimacy by making the contents of a constitution more likely to fall within the bounds of actual or perceived legitimacy, or by procedurally legitimating the outcome regardless of its substance. However, each of these pathways has considerable explanatory weaknesses and do not in themselves justify ratification. Thus, I ultimately conclude that there seems to be no convincing general justification available for ratification. The initially compelling arguments in favor of the procedure apply only occasionally, ignore differences between constitutional and ordinary lawmaking, contradict some of our central theories and assumptions about constitutionalism and democracy, or assume the prior existence of robust democratic norms. This does not amount to a wholesale rejection of ratification, for contextual variables might produce reasons for its implementation and I explore what these might be, but it does give reason to question the automatic application of this procedure, as well as the similar treatment of other peripheral components of constitutional and institutional design processes the merits of which are assumed rather than critically evaluated.

This dissertation is a study of the codification of empire and its unexpected consequences. It returns to the constitutional history of the Austro-Hungarian Empire — a subject whose heyday had passed by the late 1920s — to offer a new history of sovereignty in Central Europe. It argues that the imperatives of imperial constitutionalism spurred the creation a rich jurisprudence on the death, birth, and survival of states; and that this jurisprudence, in turn, outlived the imperial context of its formation and shaped the “new international order” in interwar Central Europe. “Law, Time, and Sovereignty” documents how contemporaries “thought themselves through” the transition from a dynastic Europe of two-bodied emperor-kings to the world of the League of Nations. The project of writing an imperial constitution, triggered by the revolutions of 1848, forced jurists, politicians and others to articulate the genesis, logic, and evolution of imperial rule, generating in the process a bank or archive of imperial self-knowledge. Searching for the right language to describe imperial sovereignty entailed the creative translation of the structures and relationships of medieval composite monarchy into the conceptual molds of nineteenth-century legal thought. While the empire’s constituent principalities (especially Hungary and Bohemia) theoretically possessed autonomy, centuries of slow centralization from Vienna had rendered that legal independence immaterial. Seeking conceptual means to manage the paradox of states that existed in law but not in fact, legal scholars and regional claim-makers alike cultivated a language of “historical rights” to serve as a placeholder for the suspended sovereignty of these sleeping states, swallowed up but not dissolved in the python of empire. Remarkably, “historical rights” became a kind of Trojan horse that smuggled the specter of international law into the internal workings of imperial constitutional law: the line between the two orders grew porous long before the formal sovereign rupture of 1918. Drawing on nineteenth-century legal studies and government legislation as well as parliamentary debates and other public statements, I thus show how imperial constitutional law — closely intertwined with the new academic discipline of constitutional law that emerged coterminously — provides an extraordinarily powerful vantage point from which to observe the construction of “modern” notions of statehood, rights, and sovereignty out of the raw materials of dynastic law. What is more, I reveal how the intellectual products of this constitutional tradition survived the empire’s dissolution in 1918: bodies of legal knowledge designed to capture and codify the fractured nature of imperial sovereignty eventually served as intellectual tools for managing its absence. When the empire collapsed under the pressure of four years of total war, a carefully cultivated discursive terrain lay waiting, well-stocked with tropes, arguments, and claims concerning the pre-existing statehood of many of the empire’s component parts. At the Paris Peace Conference and beyond, claim-makers redeployed the rhetorical arsenal of imperial constitutional debate on the world stage, arguing for the survival of these historic polities and their rights over the rupture of imperial collapse. The interwar settlement in Central Europe, I contend, cannot be understood outside a broader sweep of legal ideas forged in the cradle of imperial law. In this way, my dissertation offers a new pre-history of the interwar international order (often narrated as a Central European “year zero”), as well as a history and post-history of the empire’s legal worlds. Sensitive throughout to the co-implication of political and epistemological questions, this dissertation is not only a history of sovereignty but also a history of knowledge about sovereignty. At its heart lies a preoccupation with the relationship between law and time. By tracking law’s “persons” and their survival through time — especially their talent for both reinvention and continuity, and their capacity to carry rights through history — it sketches a more anthropological portrait of the particular tools and logics by which legal thought sets itself in history and resists the effects of time’s passing. In offering a new account of the transfer of rights and their subjects between old world orders and new, “Law, Time and Sovereignty” doubles as a study of the temporal life of states.

The thesis examines the constitutional position of the Court of Session's supervisory jurisdiction. It begins by emphasising the methodological and substantive importance of the historicality and traditionality of law. It then provides a detailed historical account of the emergence of the Court's supervisory jurisdiction, from its inheritance of supervisory functions from emanations of the King's Council to the present-day law of judicial review. Throughout, emphasis is placed on the Court's strong sense of self-orientation in the wider legal and constitutional order, and the extent to which it defined its own supervisory jurisdiction. The court was a powerful constitutional actor and played a strong role in the increasing centralisation and systematisation of the legal order, expanding its supervisory purview through a powerful triumvirate of remedies (advocation, suspension and reduction) and a comprehensive approach to the supervision of a wide range of bodies. The thesis then frames tensions between Parliament and the Court in the context of judicial review of ouster clauses, chosen as a point of heightened inter-institutional tension. This is demonstrated to be an area in which divergent visions of the constitution are evident – Parliament regarding itself as entitled to oust the jurisdiction of the Court to judicially review, and the Court regarding itself as entitled to examine and pronounce on the extent of ouster, including its limitation or exclusion. In attempting to conciliate these divergent constitutional worldviews, the thesis rejects a “last word” approach which prevails in the English judicial review literature. It considers (and rejects), as alternatives, dialogue theories and functional departmentalism. The thesis then advances constitutional narratology as its preferred analytical framework for the accommodation of those inter-institutional tensions, and conciliation of their divergent worldviews. The Court's performance of a constitutional-narratological function facilitates the integration, conciliation and synthesis of legal norms with an existing law and legal system; weaves and coagulates multifarious legal norms into a unified and univocal body of norms; and executes a chronicling, expository and explanatory storytelling function which sets a legally-authoritative narrative to the law. In doing so, the Court performs a distinctive and indispensable constitutional function incapable of fulfilment by Parliament. It is argued that traditionality and functional necessity provide the legal-systemic legitimation for the Court's performance of the constitutional-narratological function. Finally, the thesis considers the institutional specificity of the function, concluding that it is the function, rather than the institution, that is indispensable. However, neither the advent of the Upper Tribunal nor the U.K. Supreme Court suggest at this stage that the Court's performance of that function is waning.