Copyright (c) 2009 All rights reserved. http://works.bepress.com/richardalbert Recent documents in Richard Albert en-us Tue, 18 Aug 2009 06:18:35 PDT 3600 http://works.bepress.com/richardalbert/14 http://works.bepress.com/richardalbert/14 Sun, 11 May 2008 17:01:40 PDT The constitutional states of the world exhibit three models of constitutional amendment. Their amendment practices offer a window into much more than simply how these constitutional states revise their respective constitutions. Each of these three models of constitutional amendment provides a blueprint for answering fundamental questions about sovereignty and constitutional legitimacy. Insofar as constitutional amendment procedures strike at the very core of what it means to be a people joining together to define and redefine itself, and to shape and reshape the apparatus of the state, it would be myopic to interpret constitutional amendment procedures without assessing their larger theoretical significance. In this Article, I probe the connection between the theories of constitutional change and the principles of constitutionalism that guide constitutional states. Richard Albert B. Comparative Constitutional Law http://works.bepress.com/richardalbert/12 http://works.bepress.com/richardalbert/12 Mon, 10 Mar 2008 22:13:04 PDT Parliamentarism and presidentialism are commonly, and correctly, set in opposition as distinguishable systems of governance that exhibit distinguishable structural features. Yet the structural differences between them do not necessarily give rise to functional differences. Quite the contrary, the very structural features that allow us to distinguish between presidentialism and parliamentarism often conceal their functional similarities. In this Article, I demonstrate that conventional accounts of presidentialism and parliamentarism: (1) do not fully reflect how each system actually operates; and (2) obscure the substantial similarities between parliamentary and presidential systems. Richard Albert B. Comparative Constitutional Law http://works.bepress.com/richardalbert/10 http://works.bepress.com/richardalbert/10 Thu, 13 Dec 2007 16:40:46 PST Democratic constitutionalism has in some instances erected significant barriers to participatory democracy. This is paradoxical because the promise of constitutionalism is to produce precisely the opposite result. I have a name for this paradoxical state of affairs. I call it counterconstitutionalism. In this article, I introduce and illustrate the concept of counterconstitutionalism. Richard Albert A. Constitutional Theory http://works.bepress.com/richardalbert/9 http://works.bepress.com/richardalbert/9 Thu, 13 Dec 2007 16:32:11 PST The Notwithstanding Clause is the cornerstone of our Canadian constitutional architecture. It merges parliamentary supremacy and constitutional democracy. But the Notwithstanding Clause finds itself conceptually situated between illegitimacy and desuetude in a constitutional purgatory. This is not a promising portrait. Nonetheless, it is a blessing in disguise. The tragic failure of the Notwithstanding Clause is a fortuitous opportunity to create a new process to achieve its objectives while also remaining loyal to the intentions of its creators. That is the task I have given myself in this Article. This new process--which I call advisory review--is a new form of judicial review that is uniquely Canadian, born of Canadian roots, and consistent with Canadian constitutional traditions. Richard Albert A. Constitutional Theory http://works.bepress.com/richardalbert/8 http://works.bepress.com/richardalbert/8 Sat, 23 Jun 2007 18:14:23 PDT The Federalist Founding Fathers would not recognize the modern American judiciary. Far from being the "least dangerous" branch and even farther from being "beyond comparison the weakest of the three departments of power"--as the Federalist Papers famously predicted-- the judiciary today wields much greater influence than the Federalists originally envisioned. The Federalists were wrong in their forecasts of the reach of the American judiciary. But the Anti-Federalists were right. They correctly predicted the role of the modern American judiciary.The Anti-Federalists cautioned that judicial encroachments into the public square would undermine the American project of democracy and its promise of popular participation in public discourse. This Article explores the use of several constitutional devices in the service of American popular democracy. These devices have two purposes: first, to restore balance to the American constitutional order, and second, to bring the modern American judiciary into conformity with the more modest vision the Founding Fathers had when they created it. Richard Albert C. Constitutional Design http://works.bepress.com/richardalbert/7 http://works.bepress.com/richardalbert/7 Wed, 13 Jun 2007 09:16:46 PDT This Article is an exercise in comparative constitutional law and politics. It is both descriptive and analytical. It explores how--and explains why--Canada and the United States have mediated the tension between the right of access to abortion clinics and the freedom of religious expression. It also illuminates why both nations have privileged the right of access to abortion clinics over the right to free religious expression. Richard Albert B. Comparative Constitutional Law http://works.bepress.com/richardalbert/6 http://works.bepress.com/richardalbert/6 Wed, 13 Jun 2007 08:40:42 PDT Establishment Clause case law is incoherent in many consequential ways. Many point directly to the Supreme Court of the United States for this lamentable state of affairs. I disagree with this diagnosis. It is an inaccurate and incomplete criticism to blame the Supreme Court for the current landscape of establishment jurisprudence. Modern establishment doctrine--incoherent though it may be--is more properly viewed as an evolving product of the continuing public constitutional discourse among Americans and between public and private forces about the proper role of religion in the American polity. Just as early Americans debated among themselves, armed with their differing hopes and visions about how to mediate the intersection of religion and the state, so too Supreme Court decisions have, on a parallel track, reflected the changing contours of this important debate--a conversation that has yet to cede center stage in the American public square. Richard Albert D. Law & Religion http://works.bepress.com/richardalbert/5 http://works.bepress.com/richardalbert/5 Wed, 13 Jun 2007 08:38:55 PDT This Article explores whether liberal democracy demands the separation of Church and State. Drawing from several western jurisdictions--including Canada, the United States, Argentina, Denmark, Finland, Sweden, and England--this Article advances the historical and theoretical claim that the American model of strict separationism is not necessarily an indispensable feature of liberal democracy. Richard Albert B. Comparative Constitutional Law http://works.bepress.com/richardalbert/4 http://works.bepress.com/richardalbert/4 Wed, 13 Jun 2007 08:34:45 PDT It has long been the prerogative of a presidential nominee to bestow the Vice Presidency upon any constitutionally eligible individual without any measure of popular input or consent. This arrangement may have been tolerable in the past when the Vice President was a mere minion wielding only negligible influence upon the organs of government. But the modern power and prestige of the Vice Presidency--which now holds prime ministerial dominion in America and commands transnational authority--calls for the popular legitimization of the office. As the Vice Presidency continues to stand only one heartbeat from the Presidency in the precarious international context governing American interaction with friend and foe alike, the office can no longer defensibly remain the exclusive province of a political party`s presidential nominee. The United States must democratize the Vice Presidency with some form of popular consent buttressing this focal post in American government, at last liberating the office from its crisis of popular illegitimacy. Richard Albert C. Constitutional Design http://works.bepress.com/richardalbert/3 http://works.bepress.com/richardalbert/3 Wed, 13 Jun 2007 08:28:56 PDT In elaborating the meaning of the Establishment Clause, judges and scholars have commonly turned to the founders as their interpretative compass. But this should not necessarily be so - at least not exclusively. In giving meaning to the Establishment Clause, judges and scholars should also turn to the framers and ratifiers of the Fourteenth Amendment. The Fourteenth Amendment transformed the original meaning of the civil protections preserved in the Bill of Rights. In light of the transformative effect of the Fourteenth Amendment, those responsible for its conception and confirmation must be consulted--of course in concert with Jefferson, Madison, and other founding leaders--in order to fully and properly gauge the meaning of the modern Establishment Clause. Richard Albert D. Law & Religion