The replacement of traditional seriatim opinions with an "Opinion of the Court," offers what initially appears to be an interesting but seemingly trivial characteristic of American law. In fact, this departure from convention represents an exceptional shift in the behavioral actions and expectations of American appellate judges. This switch in the method of judicial communication is an exemplar for the belief that institutions, and the rules that regulate them, matter seriously. Failure to appreciate and insist upon "sincerity" as a distinctive judicial trait has impoverished historical and structural approaches to constitutional argument and has aided in the conflation of judges and legislators. Moreover, the initial demotion of sincerity as a cardinal value of American judicial power was an amendment of constitutional structure of rather dubious motive and utter lack of process. Anglo-American history reveals that judges performing their appellate functions consciously and consistently attended to a sincere, individual execution of their duty. Furthermore, an exploration of important Anglo-American jurisprudence reveals that sincerity is a presupposed though often neglected judicial virtue. This tripartite argument also includes a review of important constitutional theory and legal commentary regarding judicial communication. In the broadest sense, I endeavor to explain that the nature of law is inextricably related to its delivery and that the Constitution admits of a conversing, plurally-voiced dynamic of communication. These sorts of inquiries are true to American founding beliefs that a new science of politics can apply to old problems of governance. These arguments also highlight a guiding principle for any judiciary functioning in a constitutional democracy: public communication is critical for any consenting polity to discern the worth and import of the rule of law.

The purpose of this thesis is to examine the procedural democratic legitimacy of the Court of Justice of the European Union. The Court of Justice has been instrumental in the construction of the European Union. Through its interpretation of the Treaty of Rome since the 1960s, it has constituted a legal system distinctive in kind. In contrast to orthodox instances of the political community – international organisations and the nation-state – the EU exemplifies no general type. Its legal, constitutional, political, economic and social infrastructures are part of a complex and pervasive web of overlapping jurisdictions that goes some way beyond the ordinary international organisation (by virtue of constitutional principles such as direct effect and citizenship), but not quite as far as the nation-state (e.g. sovereignty contestation). This being the case, its interlocutors have long since understood that the EU is in a state of transformation – it is itself a project and a process, the end result of which (finalité) is unknown. As such, many questions have been asked about the legitimacy of this process; and, given the Court of Justice’s (in)famous generative role within this process, the Court also finds itself the subject of such scrutiny. The legitimacy of the Court of Justice has been the focus of attention from both academics and practitioners. Most of that attention has been on the Court’s jurisprudence and jurisdiction – scrutinising the legal reasoning of cases; or questioning the limits of its constitutional functions according to axiomatic conceptions of, for example, the separation of powers doctrine. By contrast, less attention has been paid to the democratic legitimacy of the Court of Justice, and much less in relation to the Court’s institutional design. The subject-matter of the analysis in this thesis is the Court’s structures and processes, such as: the composition and appointments processes for members of the Court; the mechanisms that give access to various kinds of participants (such as locus standi and third-party intervention); and the use of judicial chambers. Procedural democratic legitimacy, moreover, has two dimensions: intrinsic and instrumental. The intrinsic is a measure of the democratic credentials of the Court as a discrete decision-making authority (such as representativeness and democratic participation); whereas the instrumental is concerned with the ways in which the Court contributes to the overall democratic legitimacy of the EU. In this thesis, the structures and processes of the Court of Justice are examined in light of both of those criteria. In contrast to prevailing approaches of constitutional theorists – who tend to treat these criteria as functions that are quite discrete, and their performance as mutually exclusive – an important theoretical contribution of this thesis is to develop an analytical framework that allows for the inherent synergies and tensions that exist between intrinsic and instrumental criteria to be factored into analyses of the democratic legitimacy of constitutional courts.

Thomas Jefferson's contribution to the development of public administration in the United States has been largely neglected. When we think of Jefferson our minds naturally reflect back to his authorship of the Declaration of American Independence, his commitment to religious freedom, his unwavering support for universal education at all levels of instruction, his establishment of the University of Virginia, and his public service as Foreign Minister to France, Secretary of State, Vice President and President of the United States. Such extraordinary political and professional accomplishments often keep us from connecting Jefferson to the art and science of public administration. A careful examination of Jefferson's life, however, from his election to the presidency in 1800 to his death in 1826 reveals that he made important and noteworthy contributions to the study and practice of public administration - contributions that have been virtually ignored by the field as a whole. By examining how Jefferson thought about administration at the beginning of his political career compared with how he applied it during his later, more mature years reveals a remarkable change in perspective that can only come through experience in public service. The purpose of this dissertation is to tell the story of how this transformation occurred. Such a story illustrates how one of the most influential and important statesmen in American history developed an appreciation for administration by governing the nation as president and by establishing a state institution for higher education, radically different from any other in the nation, designed to connect the importance of an educated citizenry with the preservation of the nation's constitutional heritage. / Ph. D.

Constitutional change is relentless. Today, states jockey with regional associations, international organizations, transnational networks and sub-state authorities to define the scope of legitimate political conduct and establish rival bases for political affiliation. Constitutional theorists must be resolute but they should not be rigid. Especially in such uncertain conditions, theories are best understood not as plans to be implemented but as hypotheses to be tested. Charles Sabel and David Dyzenhaus write separately but share this pragmatic orientation, in which doubt is indispensable and truth is the end of public inquiry. They also share a distinctive belief that constitutionalism serves a moral end: it is the project of cultivating citizens who conceive their political community in terms of the commitments revealed by its practices. Their position, which is well suited for contemporary challenges, warrants elaboration and examination. British Columbia offers an ideal constitutional laboratory for that test. During the 1970s and 1980s, doubts mounted about the legitimacy of the constitutional settlement imposed by the Crown in the westernmost province of Canada. Legal, political and constitutional decisions raised the possibility that aboriginal rights and title survived colonization and Confederation. Since 1990, their existence has been confirmed in a cascade of constitutional experiments. Those initiatives can be distilled into four procedures: litigation, negotiation, consultation and collaboration. Although they have delivered practical benefits to some indigenous peoples, these procedures have not transformed provincial politics into a moral endeavour. The constraints on constitutionalism in British Columbia are both conceptual and institutional. Despite marginal improvements, those constraints endure and constitutionalism remains for now the sporadic pursuit of a small elite. To conceive constitutionalism as a project is to set a sound but exacting standard. Although British Columbia falls short, its failure is informative: the theory is useful.

It is the purpose of this Thesis to start an analysis of metaconstitutional review, understood as the process through which an entity such as a Constitutional Court or Supreme Court reviews the compliance of the acts of the Constituent with superior values or fills constitutional gaps with such values. This, in order to explain its separate nature from constitutional review, to determine whether it is compatible with the traditional conception of popular sovereignty as the ultimate source of power and the legitimizing element of the constitutional system and to determine whether or not metaconstitutional review could prevent social change by entrenching certain values.

It is the purpose of this Thesis to start an analysis of metaconstitutional review, understood as the process through which an entity such as a Constitutional Court or Supreme Court reviews the compliance of the acts of the Constituent with superior values or fills constitutional gaps with such values. This, in order to explain its separate nature from constitutional review, to determine whether it is compatible with the traditional conception of popular sovereignty as the ultimate source of power and the legitimizing element of the constitutional system and to determine whether or not metaconstitutional review could prevent social change by entrenching certain values.

Public actors associated with the tradition of American antislavery constitutionalism in the nineteenth-century insisted that the Constitution of 1787 contained certain inbuilt purposes or animating principles, which ought to have aided constitutional interpreters in construing specific provisions of the constitutional text that related, directly or indirectly, to the law and politics of slavery in the United States. The Constitution of 1787 recognized the existence of slavery in the several states, yet antislavery constitutionalists interpreted even the slavery-related clauses as aspiring toward a certain liberal constitutional vision that was not yet a reality. In this dissertation, I argue, first, that these nineteenth-century interpretations of the Constitution in antislavery terms were intricately bound up with theories of natural law, and, second, I suggest that this aspect of the antislavery constitutional tradition offers a strong interpretive challenge (both descriptive and normative) to various aspects of the current scholarly literature on constitutional development and constitutional theory. / text

Constitutional change is relentless. Today, states jockey with regional associations, international organizations, transnational networks and sub-state authorities to define the scope of legitimate political conduct and establish rival bases for political affiliation. Constitutional theorists must be resolute but they should not be rigid. Especially in such uncertain conditions, theories are best understood not as plans to be implemented but as hypotheses to be tested. Charles Sabel and David Dyzenhaus write separately but share this pragmatic orientation, in which doubt is indispensable and truth is the end of public inquiry. They also share a distinctive belief that constitutionalism serves a moral end: it is the project of cultivating citizens who conceive their political community in terms of the commitments revealed by its practices. Their position, which is well suited for contemporary challenges, warrants elaboration and examination. British Columbia offers an ideal constitutional laboratory for that test. During the 1970s and 1980s, doubts mounted about the legitimacy of the constitutional settlement imposed by the Crown in the westernmost province of Canada. Legal, political and constitutional decisions raised the possibility that aboriginal rights and title survived colonization and Confederation. Since 1990, their existence has been confirmed in a cascade of constitutional experiments. Those initiatives can be distilled into four procedures: litigation, negotiation, consultation and collaboration. Although they have delivered practical benefits to some indigenous peoples, these procedures have not transformed provincial politics into a moral endeavour. The constraints on constitutionalism in British Columbia are both conceptual and institutional. Despite marginal improvements, those constraints endure and constitutionalism remains for now the sporadic pursuit of a small elite. To conceive constitutionalism as a project is to set a sound but exacting standard. Although British Columbia falls short, its failure is informative: the theory is useful.

The aim of the thesis is to address the jurisprudence of constitutional conflict between the Court of Justice and national courts with constitutional jurisdiction. It seeks to determine how the principle of primacy of EU law works in reality and whether the jurisprudence of the courts under analysis supports this concept. In so doing, the goal is to determine if the theory of constitutional pluralism can explain and guide the application of the principle of primacy of EU law in the jurisprudence of constitutional conflict. The analysis has been carried out on two levels. First, by exploring sovereignty claims by the courts under analysis, as well as reconciliatory vocabulary they employ to manage and contain constitutional conflict. Second, by further studying the three areas of constitutional conflict - ultra vires review, identity review, and fundamental rights review - to provide more nuance in the analysis of the way the Court of Justice has expanded the self-referential system of the Treaties; the different limits that constitutional adjudicators have placed on the principle of primacy as a result; and what possible solutions they envisage in the event of a constitutional conflict. All the courts under analysis have employed the vocabulary of mutual respect and self-restraint as principles guiding the resolution of constitutional conflict. Constitutional conflict is managed through incremental and permanent contestation and accommodation of their opposing claims to sovereignty (the auto-correct function of constitutional pluralism) that results in the uniform interpretation and application of Union law, but keeping in line with conferral as its defining principle. The analysis demonstrated the existence of a heterarchical constellation - the potential of all the courts involved for being ranked in a number of different ways at different times - grounded in mutual respect and self-restraint.

Made available in DSpace on 2015-03-05T17:16:46Z (GMT). No. of bitstreams: 0 Previous issue date: 11 / Nenhuma / A presente dissertação tem por objetivo construir, a partir da hermenêutica filosófica, uma justificação filosófica ao dirigismo constitucional, no contexto da superação do paradigma positivista que impera no Direito brasileiro. Com base no modelo estrutural do jogo e na noção de arte, de matriz gadameriana, e com suporte na fenomenologia ontológica heideggeriana, o texto se propõe a analisar criticamente os elementos que formatam e sustentam o imaginário jurídico positivista dominante, para posteriormente apresentar, por meio da hermenêutica filosófica, caminhos à desconstrução desse imaginário e à conseqüente superação do positivismo jurídico, possibilitando o reconhecimento da força normativa da Constituição dirigente. O dirigismo constitucional é concebido a partir da superação do dualismo metafísico do esquema sujeito-objeto oriundo da filosofia cartesiana da consciência, de forma coerente com uma teoria material da Constituição, entendida como uma teoria da Constituição constitucionalmente adequada, ada / The purpose of this thesis, based on philosophical hermeneutic, is developing the constitutional dirigisme philosophic grounds, in the context of surpassing the dominant paradigm of legal positivism of Brazilian Law. Founded on the Gadamerian structural model of art and play, and on the Heideggerian ontological phenomenology, the text intends to analyze critically the components of the dominant legal imaginary, aiming to show the ways to deconstruct the legal imaginary and consequently to surpass the legal positivism. The accomplishment of this task makes the recognition of the normative force of the dirigent Constitution possible. The constitutional dirigisme is conceived in the context of the surpassing of the metaphysical dualism of the subject-object scheme derived from the Cartesian philosophy of conscience, coherently with a material theory of Constitution, understood as a constitutionally appropriated Constitution theory. The theory of Constitution developed in the text is adapted to the needs of a soc