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Constitutional Framework Archive
A FRESH START FOR A NEW ADMINISTRATION: REFORMING LAW AND JUSTICE POLICIES. American Constitution Society for Law and Policy. November 2008.
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On October 16th and October 30th, American Constitution Society released a package of proposals for a new Administration, of either party, and hosted a panel discussion on the topics they address. The proposals, contained in two dozen papers, cover a range of law and justice policy areas. The leading experts in these fields, past and present U.S. Senators, a former Attorney General and other high-ranking executive branch officials, distinguished scholars, and prominent advocates, offer their ideas for reforming federal law and policy.
[Note: contains copyrighted material]
MOVING TOWARD A 21ST CENTURY RIGHT-TO-KNOW AGENDA: RECOMMENDATIONS TO PRESIDENT-ELECT OBAMA AND CONGRESS. Right to Know Community. November 2008.
Full Text [PDF format, 112 pages]
Taken in total, the recommendations in the report propose a transformational role for government. It calls for reconnecting our government with all of us, “We, the people.” It calls on government to move its methods for serving the public’s right to know into the 21st century; for adopting Web 2.0 thinking and strategies. And it calls on government to make itself more open than any past administration in order to rebuild trust and accountability in our government.
[Note: contains copyrighted material]
DIFFERENTIATING CHURCH AND STATE (WITHOUTH LOSING THE CHURCH).
Villanova University Legal Working Paper Series. Patrick McKinley Brennan. Web posted May 6, 2008.
Full Text [pdf format, 35 pages]
There is an ongoing debate about whether the U.S. Constitution includes a principle of “church autonomy.” Catholic doctrine and political theology, by contrast, clearly articulated a principle of “libertas ecclesiae,” liberty of the church. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government.
[Note: contains copyrighted material.]
THE COMMITTEE SYSTEM IN THE U.S. CONGRESS.
Congressional Research Service, RS20794, Library of Congress. Judy Schneider. Re-posted to web April 6, 2008.
Full Text [pdf format, 6 pages]
Initially posted in 2003, this report has been reposted in light of the current election season. Congress divides its tasks among committees and subcommittees. Both the House and Senate have their own committee systems, which are similar but not identical. Within chamber guidelines, however, each committee adopts its own rules; thus, there is considerable variation among panels. This report provides a brief overview of the organization and operations of House and Senate committees.
SECRET SESSIONS OF CONGRESS: A BRIEF HISTORICAL OVERVIEW.
Congressional Research Service, RS20145, Library of Congress. Mildred Amer. First posted May 30, 2007; reposted March 14, 2008.
Full Text [pdf format, 6 pages]
“Secret” or “closed door” sessions of the House of Representatives and Senate are held periodically to discuss business, including impeachment deliberations, deemed to require confidentiality and secrecy. Authority for the two chambers to hold these sessions appears in Article I, Section 5, of the Constitution. Both the House and the Senate have supplemented this clause through rules and precedents. This report will be updated periodically.
JUDGING GUANTANAMO: THE COURT, CONGRESS, AND THE WHITE HOUSE.
Lionel Beehner and Eben Kaplan. Backgrounder, Council on Foreign Relations (CFR). Web posted December 5, 2007.
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The status of the suspected terrorists being held in Guantanamo Bay, Cuba “continues to test the balance between the executive, judicial, and legislative branches of the U.S. government.” The Supreme Court ruled in 2006 that the Administration’s decision to try the detainees in military war tribunals was illegal. This paper provides background and analysis of this decision.
[Note: Contains copyrighted material.]
NATIONAL EMERGENCY POWERS.
Harold C. Relyea. Congressional Research Service (CRS), Library of Congress. Updated August 30, 2007.
Full Text [pdf format, 25 pages]
The U.S. President has certain powers that can be exercised in the event of a national "crisis, exigency, or emergency. . ." However, there are limits and restraints to these powers. This report examines the developments of the regulatory statutes and past declarations of national emergency.
PRESIDENTIAL DIRECTIVES: BACKGROUND AND OVERVIEW. Harold C. Relyea. Congressional Research Service (CRS), Library of Congress. Updated April 23, 2007.
Full Text [pdf format, 19 pages]
From the earliest days of the federal government, Presidents have issued directives establishing new policy or cessation of action or notice of some declaration. Executive orders and proclamations are the best-know types of these directives. This report provides an overview of the various types of directives, their historical development, their accounting, their use, and their effects.
POWER-SHARING IN IRAQ.
David L. Phillips.
Council on Foreign Relations (CFR). April 25, 2005.
Download the document [pdf format, 53 pages]
This report recommends a "federal system of governance that preserves Iraq as a unitary state, advances the aspirations of ethnic and sectarian groups, and is administratively viable. Federal Iraq states should control all affairs not explicitly assigned to the national government." The report examines controversial issues such as ownership of Iraq's energy wealth, disarming militias, the status of Kirkuk, individual and group rights, and the role of Islam in Iraqi governance. It also outlines possible roles for the United States and the United Nations.
Phillips also makes the following recommendations, certain to stimulate discussion in foreign policy circles:
- The new Iraq should be divided into 5 or 6 federal Iraqi states, one of them being Baghdad.
- The national government should control Iraq's oil wealth with revenues returned to federal Iraqi states based on their percentage of the population.
- Peshmarga fighters and militia groups such as the Badr Brigade of the Supreme Council for Islamic Revolution in Iraq should be renamed and co-opted into national, state, and local security structures with local police reflecting the ethnic composition of communities that they serve.
- The constitution should include a bill of individual rights as well as specific measures to protect and promote the group rights of Iraqi Turkmen and Chaldo-Assyrians.
CONSTITUTION OF THE UNITED STATES. [Translations in ten languages]
National Constitution Center. Web-posted April 12, 2005.
Download the document [pdf format, each language version 2 pages]
Translations of the United States Constitution, with amendments, are in Arabic, French, German, Italian, Japanese, Korean, Portuguese, Russian, Simple Chinese and Spanish available at this site.
AA05120
JUDICIAL NOMINATIONS: THE DEBATE OVER THE "NUCLEAR OPTION" (Congressional Digest, vol. 84, no. 5, May 2005, pp. 129-160)
Full text available from your nearest American Library
The role of the Senate in approving presidential appointments has become highly contentious in the current U.S. Congress, and a showdown is looming over several judicial appointees of President George W. Bush. At the center of the controversy is the use of the filibuster, a means to delay or prevent a vote, which the Senate Democratic minority is threatening to use. With the Republicans' 55-vote majority in the Senate, the filibuster is the Democrats' only means to prevent a confirmation. To force a vote, the Senate Republican leadership is threatening to use the so-called "nuclear option" -- a maneuver that would change the "super-majority" (60 out of 100 votes) needed to approve a judicial nominee to a simple majority (51 or more votes), with the Vice-President on hand to break a tie if needed. Observers note that the current dispute has implications far beyond the issue of judicial nominations. Articles in this issue of Congressional Digest include discussions of rules governing Senate debate, constitutional implications, use of filibusters in the past, the process of federal judicial selections, and pro-and-con statements by individual Senators.
THE RELIGION-STATE RELATIONSHIP AND THE RIGHT TO FREEDOM OF RELIGION OR BELIEF: A COMPARATIVE TEXTUAL ANALYSIS OF THE CONSTITUTIONS OF PREDOMINANTLY MUSLIM COUNTRIES.
Tad Stahnke and Robert C. Blitt. United States Commission on International Religious Freedom (USCIRF). March 2005.
Download the document [pdf format, 115 pages]
The study, prepared by Commission staff, examines the text of Muslim constitutions from 44 nations in Europe, Africa, the Middle East, and Asia. The study reveals that predominantly Muslim countries—including those where Islam is the religion of the state—encompass a variety of constitutional arrangements addressing the role of Islam, the scope of the right to freedom of thought, conscience, and religion or belief, and equality of rights and freedoms, including for women.
Among the findings of the report are the following:
- More than half of the world’s Muslim population (estimated at over 1.3 billion) lives in countries that are neither Islamic republics nor countries that have declared Islam to be the state religion. Thus, the majority of the world’s Muslim population currently lives in countries that either proclaim the state to be secular, or that make no pronouncements concerning Islam to be the official state religion.
- Countries in which Islam is the declared state religion may provide constitutional guarantees of the right to freedom of religion or belief that compare favorably with international legal standards.
- Similarly, countries with Islam as the declared state religion may maintain constitutional provisions protecting the related rights to freedom of expression, association and assembly—or the rights of equality and nondiscrimination with regard to, among other things, religion and gender—which compare favorably with international standards.
- A number of constitutions of predominantly Muslim countries incorporate or otherwise reference international human rights instruments and legal norms.
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Harrington, Edward F. THE METAPHORICAL WALL (America, Vol. 192, No. 2, January 17-24, 2005, pp. 10-13)
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Harrington, senior federal district court judge in Massachusetts, argues that the metaphorical wall separating church and state, was created to limit governmental powers, not restrict religion's influence in public debates. Harrington discusses the historical roots of religious liberty and posits that the Bill of Rights defines and secures the individual's right to freedom of religion. Harrington says that "the public square needs to hear the voices of a religiously based morality, so that public affairs may be nourished by their ideals of justice and equity."
IRAQ'S CONSTITUTIONAL PROCESS: SHAPING A VISION FOR THE COUNTRY'S FUTURE. [USIP Special Report No. 132]
United States Institute of Peace (USIP). February 2005.
Download the document [pdf format, 16 pages]
The elections that have just taken place in Iraq are not simply for an ordinary legislative body; the elected National Assembly will also have the responsibility of drafting a constitution for the nation. That constitution-making process can be elite-driven and subject to external interference, or it can be transparent, participatory, and truly Iraqi, leading to greater legitimacy and stability. The United States Institute of Peace (USIP) Rule of Law Program, together with the United Nations Development Program (UNDP), is finishing a three-year project that has examined constitution making in eighteen countries, most of which have undergone post-conflict transitions. At the same time, the Rule of Law Program, through extensive consultations in Iraq, has analyzed Iraqi hopes and ambitions for the constitutional process.
This report, written by the Rule of Law Program staff, addresses the following issues:
- What lessons for Iraq might there be from other post-conflict constitution-making processes?
- How can members of Iraq's new National Assembly work with civil society groups and use the constitutional process to set the country on a new, more hopeful path, and to ensure that Iraq is both inclusive and stable?
- What role might there be for the international community in supporting this Iraqi sovereign process?
The recommendations in this report are directed both to the international community and to the elected assembly as it begins its important constitution-making efforts.
AA05028
Chaffin, Tom THE TRUTH ABOUT ELECTIONS (Time, Vol. 165, no. 5, January 31, 2005, p.78)
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The author, a visiting scholar at Emory University, notes that elections such as those recently held in Iraq don't necessarily lead to peace, but are only part of what a society needs to ensure stability and security. Chaffin notes that, "however discordant things might often seem in our own electoral house," what has held this country together for over two centuries is the U.S. Constitution. Little known to most Americans is that the Founding Fathers drew most of their inspiration for framing the Constitution from a French nobleman, Baron de Montesquieu, whose 1748 work THE SPIRIT OF THE LAWS laid out the foundation for the separation of powers. While the Declaration of Independence mirrors the lofty, revolutionary spirit of Voltaire and Locke, writes Chaffin, the Constitution was fashioned after the work of Montesquieu, who understood that good governance required attention to details. Montesquieu's dense writing style has unfortunately contributed to his obscurity, notes Chaffin, because he "still offers powerful guidance for our age."