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Stability or renewal : the judicialisation of representative democracy in American and German constitutionalism

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Date
20/06/2017
Author
Miles, David Jonathan
Supervisor
Lang, Anthony F.
Rengger, N. J. (Nicholas J.)
Funder
Carnegie Trust for the Universities of Scotland
Keywords
Constitutionalism
American constitutionalism
German constitutionalism
US Supreme Court
German Constitutional Court
Bundesverfassungsgericht
Law
Society
Civic society
European Parliament
Democracy
Politics
Elections
Electoral law
Reapportionment
Gerrymandering
Malapportionment
Barring clauses
Sperrklauseln
Electoral threshold
Electoral hurdle
Citizens
Citizenship
Civic republicanism
Representative democracy
Hannah Arendt
Thomas Jefferson
Ernst-Wolfgang Böckenförde
Alexis de Tocqueville
Baker v Carr
Reynolds v Sims
Electoral threshold cases
Voters
Parties
Political parties
Liberal democracy
Illiberal democracies
Social forces
Social movements
Institutions
Separation of powers
Courts
Constitutional courts
European Convention on Human Rights
Universal Declaration of Human Rights
Voter exclusion
Voter engagement
Civic engagement
The law of democracy
Political theory
Christian Democratic Union
CDU
Germany
The Federal Republic of Germany
West Germany
The League of Women Voters
The Socialist Reich Party
Social Democratic Party of Germany
Values
Constitutional values
The Bill of Rights
The American Bill of Rights
Majoritarianism
Incorporation
Incorporation of the Bill of Rights
James Madison
Alexander Hamilton
The Federalist Papers
Equality
Progress
Majority rule
Tyranny
Autocracy
Totalitarianism
Rights
Individual rights
Individual
Groups
Political culture
Constitutional culture
Carl Schmitt
Hans Kelsen
The US Constitution
Constitutions
The Basic Law
The German Basic Law
Grundgesetz
Higher law
Interpretation
Constitutional complaints
Democratic suicide
Weimar
The Weimar Republic
Autonomy
Opinions
Restraint
Power
Powers
Polis
Aristotle
Aristotelian polis
Suffrage
Equal Protection Clause
The Civil War
The American Civil War
The Fourteenth Amendment
Liberty
Dignity
Human dignity
Hitler
Adolf Hitler
Konrad Adenauer
Angela Merkel
John Adams
Judges
The judiciary
Judicialisation
Juridification
Public law
Private law
The New Deal
Franklin D Roosevelt
Militant democracy
The French Revolution
Human rights
World War Two
The Second World War
The Green Party of Germany
The Greens
Religion
Nation
Nationalism
Identity
Slavery
Emancipation
Cold War
The Countermajoritarian Difficulty
Jeremy Waldron
Robert Dahl
Justice
Security
Stability
Positive law
Legal positivism
Orwell
George Orwell
Kant
Rechtsstaat
Natural law
Isonomy
Oligarchy
Principles
Hersch Lauterpacht
Oliver Wendell Holmes Jr
Carolene Products footnote four
Ruth Bader Ginsburg
National Socialism
The National Socialist Party
Brown v Board of Education
Republicanism
Republican government
Constituent power
Community
Communitarianism
Free speech
Freedom of speech
Böckenförde dilemma
The Warren Court
Earl Warren
William Brennan
Andreas Voßkuhle
State and society
Civic association
Social cohesion
Vergangenheitsbewältigung
The Holocaust
The Nazi past
Civic space
Institutional space
Racism
Minority rights
Representation
Legitimacy
Democratic participation
Electoral participation
State legislatures
Felix Frankfurter
Federal government
Segregation
Civil rights
Civil rights movement
Voting rights
Lyndon Johnson
John F Kennedy
Joseph McCarthy
The Declaration of Independence
Judicial supremacy
Collective guilt
Checks and balances
The living constitution
Hungary
Poland
Judicial activism
Judicial restraint
Judicial authority
Legislatures
Legislative fragmentation
EU
The European Union
Eurosceptics
Far right
The people
Populism
Democratic deficit
Constitutional government
Arbitrary government
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Abstract
This thesis examines how American and German constitutionalism, as shaped by the U.S. Supreme Court and the German Constitutional Court (Bundesverfassungsgericht), have mediated the tension between threats to stability and the imperative of renewal through occasional or constant interventions in their democratic processes. To do this, it primarily assesses the 1960s U.S. reapportionment cases and the European Parliament electoral threshold cases of 2011 and 2014. It also considers the ideas of four thinkers, theorists and jurists who have wrestled with the dilemma of how to maintain the bond between citizen and state: Ernst-Wolfgang Böckenförde, Hannah Arendt, Thomas Jefferson and Alexis de Tocqueville. Stability and renewal represent the twin orientation points for constitutionalism and the courts against which they must adjust to possible democratic threats, or new political and social forces in need of recognition. Threats to the state can emerge either from a surfeit of illiberal views in politics and society aimed at destroying an existing constitutional order, or when democratic channels become starved of new opinions through the constitutional or unconstitutional exclusion of voters and parties. A distinctive feature of the approach taken is the conceptual division between the ‘legal/institutional’ space in which the Supreme Court and Bundesverfassungsgericht interpret constitutional meaning, and the ‘civic space’ in which citizens accept or reject constitutional meaning. One central question is how American and German constitutionalism, and the U.S. Supreme Court and Bundesverfassungsgericht shape and influence the vital civic space that is integral to the democratic relationship between citizen and state, and the survival of the state itself. Ultimately it is concluded that without acceptance of the importance of law and constitutionalism by citizens in the civic space, the influence of the Supreme Court and the Bundesverfassungsgericht becomes purely institutional and effectively consigned to the courtroom.
Type
Thesis, PhD Doctor of Philosophy
Collections
  • International Relations Theses
URI
http://hdl.handle.net/10023/11056

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