By analysing original sources and evaluating conceptual frameworks, this book discusses the idea proclaimed in the Preamble to the Constitution that Australia is a federal commonwealth. Taking careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, the author shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution (...) came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, fresh light is shed on the terms and structure of the Constitution and a range of problems associated with its interpretation and practical operation are addressed. (shrink)

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...) both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy. (shrink)

In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. First, I discuss (...) the use of general verdicts and reject their replacement in criminal trials by special verdicts. Second, I examine verdicts based upon mistakes and racial prejudice, turning my attention to perverse verdicts and the question of whether or not juries are guilty of legislating when nullifying the law. Finally, I look at the problem of the awarding of excessive damages by juries. My goal will be to provide a sound theoretical defence of the practice of jury nullification. (shrink)

Alison L. LaCroix is Assistant Professor of Law at the University of Chicago Law School, where she specializes in legal history, federalism, constitutional law and questions of jurisdiction. She has written a fine, scholarly volume on the intellectual origins of American federalism. LaCroix holds the JD degree (Yale, 1999) and a Ph.D. in history (Harvard, 2007). According to the author, to fully understand the origins of American federalism, we must look beyond the Constitutional Convention of 1787 and range over the (...) colonial, revolutionary, and founding periods including developments in the early republic. LaCroix questions both the idea that American federalism originated, all at once, at the Constitutional Convention of 1787 and the idea that republican ideology (with its strong emphasis on legislative power) was the single dominant framework of eighteenth-century American political thought. Versions and elements of federalist or con-federative ideas were also long present and in a process of development. (shrink)

The purpose of this paper is to consider some aspects of the question of how difficult it should be to amend or change constitutional laws through formal amendment procedures. The point of departure of my discussion is an amendment procedure that has recently been suggested by the prominent legal and political philosopher Bruce Ackerman. He defends a three-step amendment procedure – where a re-elected president is authorised to propose amendments that must thereafter be approved first by a two-thirds majority of (...) the legislature, and then by a simple majority of the citizens at the next two presidential elections. I propose and defend an alternative amendment procedure that can be termed the four-step procedure. According to this procedure, the right to propose amendments is granted both to legislators and voters via citizen initiatives. Thereafter, the proposed amendments should be placed before the legislature, where they must be approved by a simple majority in two successive parliaments, and there must be an interval of no less than one year between the two votes. If passed by the legislative assembly, the amendment(s) should be approved by a simple majority of the electorate in a referendum. However, a submajority of the legislators (i.e. a one-third minority) should be empowered to require an additional referendum on the proposed amendment(s), and this final referendum should be held two years after the first popular vote. In order to assess the outlined amendment procedures, I primarily focus on the following factors or criteria of evaluation, which I group under three headings: (1) Central ideas and ideals in deliberative democratic theory and the fact of persistent disagreement in modern pluralist societies (this includes considerations of how well alternative amendment procedures deal with disagreement among citizens); (2) rule of law values, stability and flexibility; and (3) the value of checks and balances that can guard against the abuse of power (or more precisely, whether the amendment procedures under consideration provide adequate checks and balances between courts, political actors and citizens). (shrink)

Abstract: The symmetry argument is an objection to the 'deprivation approach'– the account of badness favored by nearly all philosophers who take death to be bad for the one who dies. Frederik Kaufman's recent response to the symmetry argument is a development of Thomas Nagel's suggestion that we could not have come into existence substantially earlier than we in fact did. In this paper, I aim to show that Kaufman's suggestion fails. I also consider several possible modifications of his theory, (...) and argue that they are unsuccessful as well. (shrink)