Why have a Bill of Rights?

Brennan, William J.

doi:10.1093/ojls/9.4.425

Cited by 7 publications

(4 citation statements)

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“…Members of the U.S. Supreme Court (even those with very different political positions) have also expressed the view that entrenchment is the central purpose of constitutionalism. According to Justice Scalia (1997, 40) the “whole purpose [of a constitution] is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away.” Justice Brennan (1991, 4) likewise notes: “[i]n my view, it is crucial to the durability and efficacy of a charter of personal liberties that it not be subject to easy alteration or suspension. .…”

Section: Introductionmentioning

confidence: 99%

Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design

Versteeg

Zackin

2016

Am Polit Sci Rev

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T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.

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Section: Introductionmentioning

confidence: 99%

Constitutions Unentrenched: Toward an Alternative Theory of Constitutional Design

Versteeg

Zackin

2016

Am Polit Sci Rev

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“…Armageddon" 39 where, in reality, healthcare reform is worked out. As a result, accounts of healthcare reform confuse and undermine reasonable and legitimate political dispute and debate.…”

Section: Roadmapmentioning

confidence: 99%

“…Most often, the rhetoric is loaded and is an expression of pure ideological caricature lodged at the extremes of an untrammelled free market, 36 or a fully centralized socialist system, 37 or perhaps reversion to some less desirable point in history. 38 Ideologues on both sides appear entrenched in their refusal to acknowledge the compromises that emerge from the "wide and fertile space between Utopia and Armageddon" 39 where, in reality, health care reform is worked out. As a result, accounts of health care reform confuse and undermine reasonable and legitimate political dispute and debate.…”

Section: A the Uk's Health And Social Care Act 2012mentioning

confidence: 99%

Beyond the Market: The Role of Constitutions in Health Care System Convergence in the United States of America and the United Kingdom

Fletcher

Marriott

2014

J. Law. Med. Ethics

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IntroductionTwo narratives have emerged to describe recent healthcare reforms in the United States of America (US) and the United Kingdom (UK). One narrative speaks of revolution, 1 that the adoptions of the Affordable Care Act 2010 (ACA) in the US, and the Health and Social CareAct 2012 (HSCA) in the UK, have resulted in fundamental, large-scale philosophical, political and legal change in the jurisdictions' respective healthcare systems. 2 The other narrative evokes evolution, 3 identifying each new legislative scheme as a natural development of existing governance structures. 4 Policymakers in both the US and UK face the problem of a healthcare system which, as traditionally envisaged, cannot offer universal access to healthcare at a reasonable, or politically acceptable, price. 5 In an attempt to solve this problem, policymakers shop around, with the result that each of the two jurisdictions' reformed healthcare system includes features normally associated with a free market healthcare model, as this has been seen to increase quality and lower costs, but both also demonstrate characteristics of a state run model, which provides a safety net for citizens and a buffer against the commodification of health.Here, we argue that neither the revolutionary nor the evolutionary narrative adequately characterizes these policy initiatives since, although each jurisdiction has effected significant change, neither has detached its reformed healthcare system from the moorings of its traditional healthcare model and neither takes adequate account of the broader settings in which those reforms have occurred. 6 The narrative of revolution pays insufficient attention to party politics and the extremes of partisan rhetoric, and lacks a considered exposition of the political bargaining behind reform and the crafting of legislation intended to balance past and future manifestations of a healthcare system. On the other hand, we are skeptical of the evolutionary narrative, based on its claim that the 'new' systems are typologically consistent with their predecessors, which misrepresents the reforms' extent. The introduction of the individual mandate requiring individuals to purchase healthcare insurance in the US, 7 and the marketization of the National Health Service (NHS) in the UK, 8 pushes each system into previously uncharted territory, namely the middle ground between free market and government run (social insurance) healthcare. 9 Forced to choose, for reasons which will become apparent we would dismiss the revolutionary narrative in favour of its evolutionary counterpart. We do, however, consider the evolutionary narrative too narrowly focussed and insular.In seeking to examine and explain the jurisdictions' apparent drive to the middle, we propose a distinctive evolutionary narrative, that of convergence, which, as well as adopting a less parochial perspective on developments in healthcare policy, also situates the reforms politically, constitutionally and comparatively. RoadmapTo substantiate the idea of convergence thi...

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“…Perhaps the two most important aspects of the Bill include its enforcement provisions (which exist in connection with the Constitutional structure as a whole), and the connection the Bill supplies between rights and democracy through its encouragement of intermediate associations in civil society. Enforcement, as Justice William Brennan (1989) once said, is necessary to make rights meaningful. In its reliance on the rule of law, and its provisions for limiting excessive exercises of governmental authority, the Constitution supplies a governing structure that is conducive to rights enforcement.…”

mentioning

confidence: 99%